Central Administrative Tribunal - Delhi
Resident Of: H-3/ vs Union Of India: Through on 12 January, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 51/2011 New Delhi this the 12th day of January, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr. L.K. Joshi, Vice Chairman (A) Mayukh Maitra, Asstt. Director (Senior Air Safety Officer (Engg.), Netaji Subhash Chandra Bose International Airport, Kolkata (W.B) Resident of: H-3/10, Mahavir Enclave, New Delhi-110045. Applicant (By Advocate Shri D.N.Sharma j VERSUS Union of India: Through 1. The Secretary to the Govt. of India, Ministry of Civil Aviation, Rajiv Bhawan, Safdarjung Air Port, New Delhi-110003 2. The Director General of Civil Aviation, Opposite Safdarjang Airport, New Delhi-110003. 3. The Director of Air Safety (Delhi Region), Civil Aviation Department, Safdarjanj Airport, New Delhi-110003 4. The Regional Controller of Air Safety, Civil Aviation Department, Netaji Subhash Chandra Bose International Airport, Kolkata-700052. Respondents O R D E R
Mr. L.K. Joshi, Vice Chairman (A) Shri Mayukh Maitra, the Applicant, Assistant Director Air Safety in the Directorate General of Civil Aviation (DGCA), is aggrieved by the order dated 13.07.2009 by which he has been transferred to the office of the Controller of Air Safety, Kolkatta. He is also aggrieved by the order dated 20.12.2010 of the Director General of Civil Aviation, the second Respondent, whereby the period of his unauthorised absence from duty from 13.07.2009 to 18.03.2010 and from 05.04.2010 to 30.11.2010 has been treated as dies non under Rule 25 of the CCS (CCA) Leave Rules, with the stipulation that the said period would not be counted for the purposes of leave, increment and pension. These orders, which have been placed at Annex A 2 and Annex A1 respectively have been impugned in this OA. The Applicant is seeking the following relief:
(a) That as directed by Honble Tribunal in its order dt. 02.09.2009 (Annexure A-19) and dated 24.02.2010 (Annexure A-24), the case of applicant for grant of Study Leave from 15.07.2009 to 14.07.2011, may kindly be directed to be considered by the Secretary, Ministry of Civil Aviation or any other Authority of status in the Ministry, as nominated by him, therewith also providing opportunity of personal hearing to the applicant considering the Research Work since published by him in justification of the Study Leave sought for by him. That such order for grant of Study Leave may in this case may kindly be issued at the earliest, so that the applicant could whole-heartedly devote himself to his Research pursuits under the University.
(b) That the period of unauthorised stay of applicant at New Delhi from 15.07.2009 onwards may kindly be ordered to be adjudged against the said period of his Study Leave because the applicant during this time had got published two valuable volumes of his Research Work title (i) The Diagnosis of Malfunctions in Aircraft System- Published in September, 2009 miscroprint-252 pages and (ii) Reliability and Risk Analysis (A Thesis)- published in June, 2010-224 pages. The authorities may appropriately appreciate the Research work of the applicant which is intimately related to his sphere of duties and as a whole beneficial to the technical advancement of our country in Aeronatic sphere.
(c) Allow any other and further relief as may kindly be deemed fit and proper in the circumstances of this case by the Honble Tribunal, in order to meet the ends of justice; and
(d) Award costs of this O.A. to the extent of Rs.20,000/- in favour of the suffering applicant.
2. The Applicant joined the Civil Aviation Department in 1994. On 04.12.1998 he moved an application to the second Respondent, DGCA, for pursuing his research work on "Reliability Engineering, Availability and Maintainability", beyond duty hours. The second Respondent permitted the Applicant to pursue his studies by Office Memorandum dated 22.12.1998 as follows:
Subject- Permission to seek admission to PH.D programme in Design Engg. Reliability Engineering, Availability and Maintainability Engineering, in Indian Institute of Technology, Delhi as a Part-time (Non-Sponsored) candidate.
With reference to his application dated 4.12.98 Shri M.Maitra, Air Safety Officer (Engg) in Civil Aviation Department is informed that the Director General of Civil Aviation has no objection to his pursuing PH.D programme as stated above. It is also clarified that:-
his official duties permit him to devote sufficient time for research;
facilities for research in the candidates field of research are available at the candidates place of work.
2. The above No Objection Certificate is granted to him subject to the condition that the permission to pursue PH.D programme my be withdrawn at any time without assigning any reason. After a lapse of nearly 11 years the Applicant gave an application dated 17.04.2009 to the second Respondent to inform that he was pursuing research in the subject "Reliability and Risk Analysis". It was further stated in this communication that it was only for the information of the second Respondent. The DGCA informed the Applicant by letter dated 16.06.2009 that prior permission of the competent authority was required under the CCS (Conduct) Rules for joining educational institutions or course of studies. He was advised that he might seek permission of the competent authority for pursuing his studies with all relevant details of the course with all relevant documents so as to enable the Respondent to take a decision in the matter. He was also asked to give a reply within seven days of the receipt of this communication. Meanwhile, by the impugned order dated 13.07.2009 the Applicant was transferred to Kolkatta. Following this order he was relieved from his duties at the Delhi office by order dated 14.07.2009. On 13.07.2009 the Applicant had given an application for study leave for 57 months from 13.07.2009 to 30.04.2014, by combining earned leave, half pay leave and extraordinary leave. On 05.08.2009 he gave another application for study leave for 24 months from 15.07.2009 to 14.07.2011. The Applicant had also published two books, namely, "Diagnosis of Malfunctions and Aircraft Systems" and "Reliability and Risk Analysis-A Thesis" in 2009 and 2010 respectively. On 30.07.2009, the DGCA informed the Applicant that his application dated 13.07.2009 for grant of extraordinary leave and also his notice for voluntary retirement had not been agreed to as these were not covered under the rules. He was directed to report to the office of Regional Controller of Air Safety at Kolkatta immediately, failing which disciplinary action would be initiated against him. The Applicant, thereafter, made a representation to the Secretary, Ministry of Civil Aviation on 01.08.2009 with the following prayer:
(i) That I may kindly be granted 24 months study leave under the provision of rules from 15.7.2009 to 14.7.2011.
(ii) That necessary Bonds etc. required to be executed from me in connection with grant of this leave may kindly be got from me with any other undertaking in this regard also obtained from me.
(iii) That pending grant of study leave for the above period my transfer order to Kolkata may kindly be ordered to be stayed/cancelled or kept in abeyance.
(iv) That during the period of study leave the pay and allowances etc. at the prescribed rates may kindly be allowed to be paid to me month by month as per the rules. The Applicant approached this Tribunal in OA number 2452/2009 praying for a direction to the Respondents to consider his case for grant of study leave and staying the order of transfer to Kolkatta. The Tribunal decided the OA by order dated 02.09.2009, with the following directions:
We are afraid it is not for us to look into the matter as of now. Of course the transfer issue is interlinked, we note. As a civil servant, Government may require his undivided attention if situation demands. Since an appeal is pending with the Secretary, Ministry of Civil Aviation, New Delhi, it would be appropriate if the same is disposed of within a period of three weeks from today, with intimation to the applicant. Ordered accordingly, OA is disposed of as above. Registry is directed to forthwith forward a copy of this order to the respondents, along with copy of the OA for information. On 19.02.2010, the Applicant made an application to the Director of Air Safety, Delhi Region, seeking permission to rejoin office and intimating that he would carry out his research work at his personal level and carry out the office work according to his best capabilities. He gave another representation on 25.02.2010, stating therein that he had joined the office on 19.02.2010, but now it had been communicated to him not to continue any further without resolving the matter. On 09.03.2010 the DGCA rejected his representations for joining the Delhi office and directed him to join the office at Kolkatta. He was again warned that disciplinary action would be initiated against him, if he failed to comply with these directions. The Applicant joined the office at Kolkatta on 19.03.2010. Meantime, the Applicant had filed a contempt petition number 32/2010 before this Tribunal for non-compliance of the directions dated 02.09.2009 in OA number 2452 of 2009. The contempt petition was closed by order dated 24.02.2010, as the Respondents had by that time passed an order dated 10.02.2010 rejecting the request of the Applicant for study leave. The relevant portion of the order dated 10.02.2010 has been reproduced below:
Attention in this connection is invited to your letter dated 08.04.2009 intimating that you are pursuing Doctoral research at your personal level for which no permission or NOC from the office was necessitated by the Institution, you were informed that prior permission of the competent authority was required under CCS Conduct Rules for joining educational institutions or course of studies. You were therefore asked to seek permission of the competent authority for pursuing your studies with all relevant details of the course and with all relevant documents so as to enable this office to take a decision in the matter. In reply to this letter, you had informed on 19.06.2009 that you have neither joined any educational institutions as student nor you are pursuing any course of study for University degree and that you do not wish to avail study leave or need any financial assistance from the department for pursuing your personal academic interest and that you are not sure whether you will be able to successfully publish the thesis or your research work.
Even though you were transferred to the office of Controller of Air Safety, Kolkata on 13.07.2009 for administrative reasons, you did not join that office. Instead you sent an application dated 13.07.2009 for grant of earned leave, half pay leave and extra ordinary leave with effect from 13.07.2009 to 30.04.2010. You also made an application dated 16.07.2009 giving notice for voluntary retirement on completion of 20 years of qualifying service on 30.04.2014 by availing extra ordinary leave, earned leave and half pay leave with effect from 13.07.2009 to 30.04.2014. According to the Rules, only a maximum of 24 months EOL can be granted to a Government servant for the purpose of prosecuting studies to be certified in public interest. So far as your request for VRS is concerned, such a request can be made only on completion of 20 years qualifying service and not in anticipation of completion of qualifying service in 2014. You were, therefore, informed on 30.7.2009 that your requests were not covered under the Rules and cannot be agreed to. You were therefore directed to report to the office of RCAS, Kolkata. It was also noticed that you had written to the Regional Pay & Accounts Officer stating that you had proceeded on leave preparatory to retirement with effect from 13.07.2009 and therefore the amount standing at credit in your GPF account may be paid to you as final payment.
Thus it has been noticed that while you were given an opportunity to settle the matter by seeking permission for your studies, you have been consistently ignoring the directions of higher authorities, giving an impression of wilful disobedience and negligence and neglect of work as reflected in the various memos issued to you. While you had clearly indicated earlier that you did not wish to avail any study leave on a subject which has no relevance, by your own admission, to your area of work, you are now seeking 24 months study leave for pursuing studies on the same subject. In view of the inconsistent stand adopted by you by your various actions as explained above, and in view of administrative exigencies, the competent authority has regretted its inability to accede to your request for grant of 24 months study leave. The orders for your transfer to the office of RCAS, Kolkata also remain unchanged.
This issues with the approval of Secretary, Ministry of Civil Aviation. On 28.09.2010 the Applicant gave an application to the Respondent-DGCA requesting for transfer to Delhi on the ground of his illness and inability of his family to leave Delhi. He again made a representation on 15.10.2010 in this regard. On 20.10.2010 a notice was given to him to show cause as to why the period from 13.07.2009 to 18.03.2010 and 05.04.2010 till the date of notice should not be treated as dies non because of his unauthorised absence during this period. It was noted in this notice that the Applicant joined in his Calcutta office only on 18.03.2010, although he had been transferred there on 13.07.2009 and then after joining at the place of transfer, he had abstained himself from duty from 05.04.2010 onwards. In reply to the aforesaid notice, the Applicant stated that he had filed an OA number 2452/2009 before the Central Administrative Tribunal seeking grant of study leave for 24 months. The study leave was sought from 15.07.2009 till 14.07.2011. It was stated that the DGCA had allowed the Applicant to join Ph.D. course by its Office Memorandum dated 22.12.1998, already adverted to above. It was also stated that he had got himself registered for his research work at a university in Rajasthan and he had furnished his certificate of registration to the authorities. On his being transferred to Kolkatta on 13.07.2009, he had given another application on 01.08.2009 to the Secretary, Ministry of Civil Aviation for grant of his relief for 24 months from 15.07.2009 to 14.07.2011. The Tribunal had also directed the Secretary, Ministry of Civil Aviation to decide his appeal within a period of three weeks. When no order was passed, he had sent a legal notice to the Respondents on 13.11.2009 to cancel his order of transfer and grant him study leave. He was compelled to file a contempt petition before the Tribunal. It has been stated in the reply to the notice that he never received the order passed by the Ministry with regard to his representation for study leave. He further mentioned that he would not be able to shift his family to Kolkatta because of the education of his children and because of his research work. It has also been stated that he has been suffering from chronic spondylitis. He further stated in paragraph 13 of his reply that he would not pursue his research work and would not seek a study leave, if in the interest of service it was held that he should devote himself fully to his duties in the Department. He requested for his re-transfer to Delhi because of the hardships faced by his family. By the impugned order dated 20.12.2010 the period of his unauthorised absence was treated as dies non.
3. The learned counsel for the Applicant, in the above backdrop of facts, would contend that the Respondents could not have refused to grant study leave to the Applicant, in view of the fact that the DGCA had granted him permission to pursue his research work by order dated 22.12.1998. The Applicant had registered himself with the Singhnia University in Rajasthan and he was required to submit a synopsis for his proposed Ph.D. programme. The Applicant had been busy with his research work, about which the Respondents were aware, and had also published two books on technical subjects relevant to his duties. In the light of this case transferred to Kolkatta meant that his dedicated and hard work of years would be wasted. It was contended that the Respondents could not have denied him study leave arbitrarily and without any reason. He had only requested for the study leave for 24 months, although leave for a period of 36 months was permitted.
4. We find no force in the arguments of the learned counsel for the Applicant. He is not justified in taking shelter behind the permission granted to him to pursue his research work by order dated 22.12.1998 of the DGCA. He had sought permission to seek admission to Ph.D. programme in the Indian Institute of Technology, Delhi as a part time, non-sponsored candidate. Almost after about 11 years, the Applicant informed the Respondent-DGCA on 17.04.2009, in very vague terms, that he was pursuing research work on the subject of "Reliability and Risk Analysis". He was informed by the letter dated 16.06.2009, already alluded to above, that he had to take prior permission of the competent authority for joining any educational institution for pursuing a course of study and that he should submit all the details about his research work for the competent authority to take any decision in the matter. The Applicant was transferred to Kolkatta by order dated 13.07.2009. It is only after that the Applicant first submitted an application for study leave, including earned leave, half pay leave and extraordinary leave for 57 months by his application dated 13.07.2009. On 05.08.2009, he gave another application for the study leave for two years. Without waiting for sanctioning of the study leave, the Applicant presumed that leave would be granted. On 04.08.2009, he informed the Respondents that he proceeded on leave assuming that it cannot be denied to an employee (Annex A-16). He even gave an application for voluntary retirement, although he had not completed the required years of service to be eligible for voluntary retirement. He approached this Tribunal seeking directions to the Respondents to decide his representation about grant of study leave and staying of his transfer to Kolkatta. The Tribunal did not give any directions about staying his transfer. The representation of the Applicant was decided by order dated 10.02.2010, giving cogent reasons for rejecting his representation for study leave. This order has not even been challenged in the instant OA. The Applicant then made representations to the Respondents for permission to rejoin at Delhi office, with the undertaking that he would not seek any leave for the purposes of study. The Applicant joined at his place of posting only after he was compelled to do so. He again abstained from duty without any permission from the competent authority. He made incessant representations about his transfer back to Delhi on the ground of his family circumstances and his illness. His application for study leave had been rejected on logical grounds by the Respondents. The said order dated 10.02.2010 has not even been challenged in this OA. That being so, he can not be granted relief, as prayed for by him, about giving directions to the first Respondent, Secretary, Ministry of Civil Aviation to consider the Applicant's representation for sanction of the study leave. Furthermore, he applied for the study leave only after his transfer to Kolkatta. He had earlier been told not to join any educational institution for pursuing his course of study without first obtaining the permission of the competent authority. He registered with some University in Rajasthan without prior permission, in spite of being asked to do so. The Applicant has behaved in the most inconsistent manner seeking leave for 57 months and then for another 24 months and then giving up in writing and intention to pursue study leave, subject to his being posted to Delhi. From the perusal of his various representations, already adverted to above, it becomes apparent that his sole intention is to remain in Delhi for his personal reasons and not so much for the pursuit of his academic interests. We do not also find any reason to interfere with the order transferring the Applicant to Kolkatta. The Tribunal had already once declined to stay his transfer order in the earlier OA. Considering that his representation for grant of the study leave has already been rejected and the said order has not even been challenged. There is no reason why the Tribunal should interfere with the Applicant's transfer to Kolkatta. His argument that the order by which his representation for study leave was rejected was not even given to him cannot be accepted because he has himself placed it on record.
5. On the basis of the above analysis, the OA is dismissed in limine as lacking totally in merit.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman /dkm/