Central Administrative Tribunal - Delhi
Shri Rakesh Kumar Aggarwal (R.K. ... vs The Commissioner, Kv Sangathan, The ... on 4 September, 2006
ORDER Meera Chhibber, Member (J)
1. By this OA, applicant has challenged Clause (b) of last para only of order dated 5.1.2006 wherein it is observed that the period from 2.12.2002 to 27.10.2003 may be regularized by grant of leave of kind due to the applicant since the applicant has not performed any duty during this period. Applicant has sought pay and allowances for the above said period with continuity of service, with a direction to the respondents to regularize the said period. It is submitted by the applicant that he was posted from Meerut to Imphal and was struck off strength on 13.8.2002. While he was availing joining time, he fell sick and he informed the authorities about it along with the medical certificates. He reached Imphal on 01.12.2002 and gave an application to the Assistant Commissioner to allow him to join the duties. However, he was not allowed to join by the Principal nor any order was passed by the Assistant Commissioner. In the meantime, he was threatened by the local people there. He requested the Principal to allow him to stay in School, which was also not allowed, therefore, in order to save his life, he came back to Meerut and intimated the whole incident to the authorities concerned yet no order was passed. On the contrary, applicant received a show cause notice dated 16/17.12.2003 issued by the Assistant Commissioner, Dehradun asking the applicant to explain as to why his services should not be terminated w.e.f. 14.8.2003. He gave his reply but vide order dated 6.1.2003 applicant was removed from service under Article 81(d) of the Education Code. Being aggrieved, applicant filed an appeal to the Joint Commissioner (Admn.), who was pleased to pass an order on 30.9.2003. The removal order was set aside and applicant was reinstated as TGT (Maths) with posting to Kendriya Vidyalaya, No. 1 Imphal (Manipur) where he was required to join within fifteen days from the date of receipt of the order. His period of absence from the date of removal to the date of joining on reinstatement was treated as dies-non for all purposes. This order was challenged by the applicant by filing OA No. 2369/2004 as he was aggrieved by the last sentence whereby his period of absence from the date of removal to the date of joining on reinstatement was treated as dies-non for all purposes. The said OA was disposed of vide order dated 7.7.2005 (page 18 at 24), with a direction to the respondents to consider the applications submitted by the applicant for grant of EL from 28.8.2002 to 1.12.2002 combining the joining time between 14.8.2002 to 28.8.2002 and further decide about the payment of pay and allowances to the applicant for the period from 2.12.2002 to the date on which the applicant had finally joined duties on 28.10.2003. Liberty was also given to the applicant to challenge the final orders passed by the respondents, if he still feels aggrieved. It is pursuant to the said directions that the respondents passed order dated 5.1.2006. In this order, though applicant was granted EL for the period from 28.8.2002 to 01.12.2002 by combining joining time from 14.8.2002 to 28.8.2002, but for the period from 2.12.2002 to 27.10.2003, it was observed that it may be regularized by grant of leave of kind due to the applicant since the applicant has not performed any duty during this period.
2. It is portion (b) of the order dated 5.1.2006, that is the period from 2.12.2002 to 27.10.2003, which was to be regularised by grant of leave of the kind due. which is objected to by the applicant. Therefore, he has challenged only this portion of the order dated 5.1.2006.
3. It is submitted by the applicant that he reported at Imphal on 01.12.2002, which is apparent from the order dated 30.9.2003 passed by the appellate authority itself but it was respondents who did not allow him to join the duty as they did not give any permission for joining. Thereafter, his services were terminated on 06.1.2003, which was ultimately set aside by the appellate authority, therefore, naturally he could not have joined the duties when his services were already terminated illegally. In these circumstances, counsel for the applicant strenuously submitted that the applicant is entitled to get full pay and allowances for this period and he cannot be asked to apply for leave because there is no leave to his credit. He relied on Clause 80 of Education Code to state that CCS (CCA) Rules and Fundamental Rules apply to the members of the staff of KVS and as per FR 54 (2) since the termination was set aside by the appellate authority by observing that applicant did report at Imphal on 01.12.2002 and no action was taken by the respondents, therefore, he is entitled to get full pay and allowances for the said period. He also submitted that on 7.10.2003, he was granted extension upto 31.10.2003 to join in Imphal and before 31.10.2003, he actually joined on 28.10.2003. He also relied on the judgment of Honble Supreme Court in the case of Union of India v. K.V. Jankiraman .
4. Respondents, on the other hand, have opposed this O.A. They have admitted that from 28.8.2002 to 11.9.2002, applicant was sanctioned Earned Leave but with a caveat that he should join his duties as and when the leave concludes. However, applicant did not join the duties and kept on requesting for extension on medical grounds by producing medical certificates from private doctors. He sought further leave from 12.9.2002 to 18.9.2002 and 19.9.2002 to 3.10.2002 which continued till 5.11.2002 seeking leave by another 15 days. He was, therefore, directed looking at his absenteeism to report immediately through the Assistant Commissioner, KVS, Silchar Region after facing Medical Board of the Region. It was after receiving this letter that in order to evade direct confrontation with the Assistant Commissioner that applicant tried to have a direct joining at KV No. 1, Imphal without seeking formal permission from the Assistant Commissioner, as was instructed by the Principal. The applicant left Imphal on 4.12.2002 after citing reasons of his safety. It was in these circumstances that applicants services were terminated on 6.1.2003 under Article 81(d). On appeal, the appellate authority set aside the order but since his termination was set aside by giving him benefit of doubt, therefore, respondents have rightly treated the period from 2.12.2002 to 27.10.2003 to be regularized by grant of leave of kind due to the applicant because admittedly he did not perform any duty during this period. They have thus submitted that there is no merit in the O.A. The same may be dismissed.
5. I have heard both the counsel and perused the pleadings as well. Perusal of the order dated 30.9.2003 shows that appellate authority had observed as follows:
On perusal of the relevant records and investigation it ahs been established that the said Sri Agarwal had gone to Kendriya Vidyalaya, Imphal and had given an application dated 01.12.2002 addressed to Assistant Commissioner, KVS, Regional Office Silchar seeking permission to join his duties with effect from 02.12.2002 for which no action has been taken by the authorities concerned. Under this circumstances benefit of doubt has to be extended to the appellant and the order of removal dated 03/06-01-2003 has to be set aside.
6. The above order clearly shows that the fact of applicant having reported at Kendriya Vidyalaya, Imphal cannot be disputed by the respondents. On the contrary, the observations of appellate authority are that applicant did give an application, on 1.12.2002 to the Assistant Commissioner, KVS, Regional Office, Silchar seeking permission to join his duties w.e.f. 02.12.2002 but no action was taken by the authorities concerned. Even after coming back to Meerut, applicant had given a detailed letter to the authorities on 9.12.2002, in which he narrated the whole story explaining the reasons as to why he had to leave Imphal as he was being threatened by the locals but no order was being given by the authorities for joining the schools but even after receiving that letter, no orders were passed by the authorities. In fact, on 30.9.2003, the appellate authority reinstated the applicant and gave him the permission to join Kendriya Vidyalaya, No. 1, Imphal within 15 days, which was further extended by the authorities and thereafter applicant did join Kendriya Vidyalaya No. 1, Imphal on 28.10.2003.
7. From the above facts, it is clear that applicant did report to the Assistant Commissioner, KVS, Silchar seeking his permission to join the duties but no orders were passed by the Assistant Commissioner. In these circumstances, applicant cannot be blamed for not having performed his duties, therefore, from 2.12.2002 to 3.12.2002, applicant would be entitled to pay and allowances but since on 4th February, 2002, applicant had left the station on his own, he would have to apply for leave of the kind due viz., HPL or EOL, whichever is due to him till 5.1.2003. On 6.1.2003, respondents had terminated his services and once his services were terminated, naturally there was no question of his performing the duties. Ultimately, the termination order was found to be bad in law, therefore, it was set aside by the appellate authority itself. In these circumstances, according to me, applicants case gets fully covered for the said period by FR 54 because neither any departmental inquiry was held against the applicant nor he was involved in any criminal case, therefore, the question of full exoneration does not arise in this case. Simply because appellate authority used the expression benefit of doubt applicant cannot be denied the pay and allowances for the period when he was illegally terminated from services. In fact, once appellate authority had observed that no action had been taken by the authorities concerned even though applicant had reported at Imphal on 01.12.2002, applicant cannot be made to suffer nor denied the pay and allowances for the period from 6.1.2003 to 30.9.2003 plus 15 days i.e. upto 15.10.2003. After 15.10.2003, since applicant had sought extension, definitely applicant would have to apply for leave of the kind due from 16.10.2003 till 28.10.2003 when he actually joined at Imphal so that the period may be regularized.
8. In view of above, the O.A. is allowed partly. The Clause (b) in the last para of order dated 5.1.2006 is quashed and set aside, with the directions in terms of para 7 above. No order as to costs.