Central Administrative Tribunal - Kolkata
Sikha Das vs All India Institute Of Hygiene & Publice ... on 28 February, 2022
-~ A Py | Pest 2 PS AN CENTRAL ADMINISTRATIVE TRIBUNAL ; ¢ _ KOLKATA BENCH, KOLKATA O0.A/350/241/2022 Date of Order'28.02.2022 Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member Sikha Das, D/o Rabinath Das, aged about 59 years, at present working as Lower Division Clerk, under the overall control of the Director, All India Institute of Hygiene & Public Health, Kolkata, at present residing at 4009, Santi Apartment, South Roy Nagar, P 5). Bansdroni, Pin Kolkata - 700070. Phone - +917980432684, E mail 1D. - [email protected] --Applicant ~ys- 1. Union of India through the Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi - 110011. 2. Director General of Health Services, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi - 110011. 3. Director, All India Institute of Hygiene and Public Health, 410, Chittaranjan Avenue, Kolkata - 700073. 4, Additional Director, - All India Institute of Hygiene and Public Health, 410, Chittaranjan Avenue, Kolkata - 700073. '--Respondents Tor The Applicant(s): Mr. C.Sinha, counsel For The Respondent(s): Mr. B. B. Chatterjee, counsel ORDER(ORAL Per: Ms. Bidisha Banerjee. Member (J):
Heard ld. counsel for both sides.
2. This application has been preferred to seek the following reliefs:
"a) To set aside and quash Impugned Letter No. E.8-16/95 dated 21.10.2021 issued by the Additional Director, A.L.LH & P.H. Kolkata.
b) To set aside and quash Impugned letter dated 08.11.2021 issued by the Advisor. (PHS) & Additional Director UHU&TC, Chetla.
c) To set aside and quash Impugned letter no. 8-12/OHC /95/5849 dated 16.12.2021 issued by the Advisor PHS) & Additional Director UHU&TC, Chetla.
d) 'To set aside and quash Impugned letter no. 8-12/UHC/ 95/5847 dated 16.12.2021 containing an absentee statement issued by the Medical Officer, UHU&TC, Chetla.
(e) To set aside and quash Impugned letter no. 31 3/UHUTC/Acctts./5902 dated 24.01.2022 issued by the DDO, UHU&TC.
f} To direct the respondents not to make any recovery and to refund the amount that has been recovered from the salary of the applicant.
g) To direct the respondents to produce the entire records including the leave applications, sanction leave, attendance register, biometric attendance sheet and the service record of the applicant before the Tribunal for adjudication.
h) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
3. The applicant is aggrieved as the statement of absence has been prepared, where the final figures do not tally with the number of working days, number of days present, no. of days absent and leave due etc. 4, hd. counsel for the applicant would allege that the figures in list is
- prepared without application of mind and further submits that the applicant is aggrieved asa recovery has: been.ordered without any show | cause notice which leads to civil consequence and amounts to pecuniary damages which is not permissible without observance of legal procedures.
5. Ld. counsel for the respondents hands 'over certain documents which shows that the applicant has been grossly irregular in attending ° office, therefore, his leave was not regularized against leave due. Ld. counsel would cite the FR 17 (1) in terms of which the salary of the leave period if not regularized need not be paid to the employee. The provision reads as under:
"F.R. 17. (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shail begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties ~ of that post, and shall cease to draw them as soon as he ceases to discharge those duties:
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence."
The provision does not stipulate stoppage of salary directly without any | notice. F.R. 17 A mandates that;
_ "FR. 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) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force;
(ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of the competent authority; and
(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 examinations, for which a minimum period of continuous service is required."
However, the Government of India's Orders, stipulates the following:
"GOVERNMENT OF INDIA'S ORDERS (1) Reasonable opportunity to be given before invoking the penal _ provisions.-
FR 17-A provides that a period of an unauthorized absence, in the calegory of cases mentioned therein, shall be deemed fo cause an interruption or break in the service of the employees, unless otherwise decided by the competent authority for certain. purposes. An order passed by the P & T authorities in the case of some of their employees, invoking FR 17-A was struck down by the Lucknow Bench of Allahabad High Court on the ground fhat issue of such an order without giving a reasonable opportunity of representation and being heard in person, if so desired, to the person concerned, would be against the principle of natural justice. The question of amending FR 17-A as also Rule 28 of the CCS (Pension) Rules and SR 200 is under consideration in consultation with the Ministry of Law.
2. The above position is brought to the notice of all Ministries/ Departments .so that if there are occasions for invoking FR 17-A, etc., they may keep in mind the procedural requirement that an_ order under FR._17-A, etc., should be preceded by extending to fhe person concerned a reasonable opportunity of representation and being heard in person if so desired by him/her.
[GL., Dept. of Per. & Trg., O.M. No. 33011/2 (S)/84-Estt. (B), dated the 20th/23rd May, 1985" | * Further DOPT OM dated 28 March, 2013 stipulates as under:
"No, 13026/3/2012-Est (Leave) Government of India.
Ministry of Personnel, P.G. & Pensions (Department of Personnel & Training) New Delhi, the 28 March, 2013. .
OFFICE MEMORANDUM Subject: Consolidated instructions relating to action warranted against Government servants remaining away from duty without authorization /grant of leave-Rule position The undersigned is directed to say that various references are being received from Ministries/Departments seeking advice/post facto regularisation of ' unauthorised absence. It has been observed that due seriousness is not being accorded by the administrative authorities to the various rule provisions, inter alia under the CCS(Leave) Rules, 1972, for taking immediate and appropriate' action against Government servants staying away from duty without prior sanction of leave _or overstaying the periods of sanctioned leave. It is reiterated that such absence is unauthorised and warrants prompt and stringent _action as per rules. It has been observed that concerned administrative authorities do not follow the prescribed procedure for dealing with such unauthorised absence.
2. In view of this, attention of all Ministries/Departments is invited to the various provisions of the relevant rules, as indicated in the following paragraphs for strict adherence in situations of unauthorised absence of Government servants. It is also suggested that these provisions may be brought to the notice of all the employees so as to'highlight:the consequences which may visit if a Government servant.is on unauthorised absence. The present OM intends to provide.ready reference points in respect of the relevant provisions, hence it is advised that the relevant rules, as are being cited below, are referred to by the competent 'authorities for appropriate and judicious application. The relevant provisions which may be kept in mind while . considering such cases are indicated as follows: oo
(a) Proviso to FR 17(1) The said provision. stipulates that.an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence. ;
(b) FR 17-A The said provision inter alia provides that where an individual employee remains absent unauthorisedly or deserts the post, the period of such absence shall be deemed to cause an interruption or break in service of the employee, uniess otherwise decided by the competent authority for the purpose of leave travel:
concession and eligibility for appearing in the departmental examinations, for which a minimum period of service is required. ~
c) Rule 25 of the CCS (Leave) Rules, 1972 The said provision addresses the situation where an employee overstays beyond the sanctioned leave of the kind due and admissible, and the competent authority has not approved such extension. The consequences that flow from such refusal of extension of leave include that:
i. the Government servant shall not be entitled to any leave salary for such absence;
il. -the period shall be debited against his leave account as though it were half pay leave to the extent such leave is.due, the period in excess of such leave due being treated as extraordinary leave iii. wilful absence from duty after the expiry of leave renders a - Government servant liable to disciplinary action.
'With respect to (iii) above, it. may be stated that all Ministries/ Departments are'
- fequested to ensure that in all cases of unauthorised absence by a Government servant, he should be informed of the consequences of such absence _and 'be directed to rejoin duty immediately/ within a-specified period, say within three days, failing which he would be liable for disciplinary action under CCS (CCA) Rules, 1965. It may be stressed that a Government servant who remains absent without any authority should be proceeded against immediately and this should not be put - off till the absence exceeds the limit.prescribed under the various provisions of CCS (Leave) Rules, 1972 and the disciplinary case should be conducted and concluded as quickly as possible. -
(d) Rule 32(6) of the CCS (Leave) Rules, 1972 This provision allows the authority competent to 'grant leave, to commute retrospectively periods of absence without leave into extraordinary leave under Rule 32(6) of CCS (Leave) Rules, 1972. A similar provision also exists under rule 27(2) of the CCS (Pension) Rules, 1972. It may please be ensured that discretion allowed under these provisions is exercised judiciously, Keeping in view the circumstances and merits of each individual case. The period of absence so regularised by grant of extra ordinary leave shall normally not count for the purpose of increments and for the said purpose it shall be regulated by provisions of FR 26(b)(ii).
' 3. All Ministries/ Departments should initiate appropriate action against delinquent _ ' Government servants as per rules. .
4. © ALXXXX (Mukesh Chaturvedi) Deputy Secretary to the Govi. of India"
6. Since the recovery from the salary or stopping of salary for the said period of absence without issuance of a notice etc, without treating the period of absence on an unauthorized etc., is not stipulated in any of legal i provisions above, and leads to civil consequence with pecuniary damages to the applicant, respondents shall undertake the following exercise;
D Issue a show cause notice to the applicant to justify her absence/ ' leave for the period she has availed on leave.
To accord a personal hearing to the applicant with Biometric attendance slips from the year January 2015 onwards
iii) | To ask fora reply from the applicant to justify her absence.
iv) To consider leave applications if any preferred to the authorities during the said period.
vy) 'To come to a conclusion whether the leave is to be termed as unauthorized. °
vi) Thereafter to proceed in accordance with law.
Let the entire exercise be completed preferably by 31st March so that a decision is taken before her retirement. In view of the Gol instructions supra, till such time, let there be no further recovery. 7 The present O.A accordingly stands disposed of. No costs.
8. Urgent certified copy of this order be handed over to both sides.
(Nandita Chatterjee) -- - (Bidisha Banerjee) Member (A) . _ Member (J) ss