Central Administrative Tribunal - Allahabad
Thakur Ajeet Singh vs Union Of India on 20 March, 2012
Open Court CENTRAL ADMINISTRATIVE TRIBUNAL, ALAHABAD BENCH, ALAHABAD Allahabad, this the 20th day of March, 2012 Present : Honble Mr. D.C. Lakha, Member-A Original Application No.558/2006 Thakur Ajeet Singh, Ex. Senior Auditor A/C No.8317201 (CDA(AF), 107, Rajpur Road, Dehradun Son of Late Thakur Damodar Singh, Resident of Village and Post Majra, Saharanpur Road, District Dehradun. .......Applicant. By Advocate Shri P. Awasthi Shri R.K. Awasthi V E R S U S 1. Union of India, through Secretary, Ministry of Defence, R.K. Puram, West Block-V, New Delhi - 110066. 2. Controller General Defence Accounts, Ministry of Defence, R.K. Puram, West Block-V, New Delhi-110066. 3. Controller of Defence Accounts (AIR Force), 107, Rajpur Road, Dehradun. 4. Provincial Controller of Defence Account (Air Force), (Pension), Draupadi Ghat, Allahabad. ......Respondents. By Advocate : Shri Anil Dwivedi Shri Ajay Singh O R D E R
By way of this OA the following reliefs are sought :
(i) Issue a writ, order or direction in the nature of Certiorari quashing part of the order dated 28.3.2006 read with order dated 22.6.2005, passed by the Office of PCDA (AF) 107, Rajpur Road, Dehradun treating 639 days as Extraordinary Leave on private affairs contained in Annexure No.14 to the application.
(II) Issue a writ, order or direction in the nature of Mandamus commanding respondents to ignore order dated 28.3.2006 and order dated 22.6.2005, passed by the office of PCDA(AF), 107 Rajpur Dehradun and other similar orders rejecting the representation of the petitioner and to treat 639 days Extraordinary leave on private affairs to be 639 days extraordinary leave on medical grounds and a further direction to recalculate retiral benefits of the applicant by including the aforesaid 639 days as a period of service for computation of retiral benefits.
(III) Issue a writ, order or direction in the nature of mandamus commanding respondents to correctly recalculate the retiral benefits of the applicant in accordance with law and to finalise the same within the time frame prescribed by the Tribunal.
(IV) Pass such other and further order with this Honble Court may deem fit and proper in the facts and circumstances of the case.
(V) Award costs.
2. The brief facts of the case are that the applicant while working as Senior Auditor with the Controller of Defence Account (AF) 107, Rajpur Road, Dehradun was transferred from Dehradun to NALL Bikaner. The applicant challenged the aforesaid order of transfer by means of Original Application No.624 of 1997 in which the Central Administrative Tribunal, Allahabad vide order dated 17.6.1997 disposed of the application directing the concerned authorities to decide the representation. Meanwhile, the representation was decided against the applicant in his absence and thereafter since the applicant refused to join at NALL Bikaner, he was placed under suspension contemplating disciplinary proceedings. However, while the matter was pending the applicant sought voluntary retirement vide letter dated 20.10.1998. The applicant was asked to submit unconditional voluntary retirement application and also indicate the Rule of the CCS (Pension) Rules, 1972 under which he is making the application for voluntary retirement. The applicant submitted another application on 13.9.1999 stating that instant application be treated as three months statutory notice as required under Rule 48A of CCS (Pension) Rules, 1972. The aforesaid application was received in the office of respondents on 14.9.1999 and even after the expiry of the statutory period of notice of three months, no decision for voluntary retirement was taken till 14.12.1999. On the other hand the disciplinary proceedings were initiated against the applicant for misconduct under Rule 3(I), (II) and (III) of CCS (Conduct) Rules, 1964 and a charge sheet was issued. The applicant denied all the charges. However, vide order dated 3.3.2000 the punishment order was passed against him by removing him from service (Annexure-1). He filed statutory appeal which was rejected on 28.6.2001. The applicant challenged the order of removal by filing OA No.35 of 2001 on more than one grounds. One of the grounds was that since the applicant had applied for voluntary retirement in terms of Rule 48-A of the 1972 Rules and even after expiry of statutory period of three months no decision was taken and communicated to the applicant, it shall be deemed that the request for voluntary retirement has been accepted. In that OA the applicant relied upon the judgment of Honble Supreme Court passed in the case of Tek Chand Vs. Dile Ram reported in AIR 2001 Supreme Court Cases page 905. The OA was allowed and the respondents were directed to treat the applicant to have voluntarily retired from service w.e.f. 14.12.1999 and accordingly the retiral benefits be settled. The order of the Tribunal dated 14.11.2003 is available at Annexure-3. Rule 48-A and 48-B alongwith Fundamental Rule 56 of the CCS (pension) Rules are applicable in the case of the applicant for counting the qualifying service.
3. As part of the averment in the OA, the applicant goes on to say that the impugned order treating 639 days of service as Extra Ordinary Leave (EOL) has not been passed as per the Rules and he is not aware as on what ground this period has been counted as EOL whereas he has submitted the application and medical certificates from the competent Doctor. At annexure-7, the medical certificates issued by C.M.O. Dehradun dated 4.10.1997 and 19.5.1999 are attached testifying the ailment of the applicant. But while calculating the qualifying service the respondents have illegally treated 639 days as EOL which has reflected adversely on the pension for which he is eligible. The applicant has been putting up the representation to challenge the pension fixed as per the impugned order treating 639 days as EOL.
4. The respondents have contested the case by filing the counter affidavit, to which rejoinder affidavit has been filed on behalf of the applicant as well. The fact about the service of the applicant as an employee under the Ministry of Defence, as stated in the OA, seeking voluntary retirement from service and the order on the earlier OA are not disputed by the respondents. It is stated in para 6 of the counter that out of 814 days of absence from duty of the applicant, the competent authority sanctioned 175 days leave on medical grounds for which medical certificates were submitted by the applicant. As for as rest of 639 days of absence from duty for which the applicant had submitted medical certificates obtained from RMPs mentioning different diseases, the competent authority had regularized the aforesaid 639 days of absence from duty as EOL while calculating the qualifying services for pension. Accordingly, the total service has been computed treating 639 days of absence from duty as EOL on priate affairs. This leave as EOL has been sanctioned in terms of Rule 19 (5) of CCS (Leave) Rules. The services calculated for pensionary purpose comes to 26 years 5 months and 6 days and the same has been communicated to the applicant in response to his letter dated 13.9.1999.
5. Both the learned counsels are heard and their pleadings are perused. Learned counsel for the applicant, in support of the averment made in the OA, has reiterated that the impugned order has been passed illegally without application of mind and treating 639 days as Extra Ordinary Leave for private affairs, and is not at all sustainable as per rule. In view of the counter the counsel for the respondents has contended that the medical certificate from the competent medical authority has not been submitted for 639 days by the applicant and accordingly this period is treated as Extra Ordinary Leave for private affairs and accordingly the qualifying services has been calculated. In response to the query made with learned counsel for the applicant as well as counsel for the respondents the delay of 639 days for which Extra Ordinary Leave has been sanctioned, no details were supplied alongwith the medical certificate submitted by the applicant for this period. It is seen in the impugned order that leave of 175 days on medical ground has been sanctioned for which the medical certificates from the Doctor of Govt. Hospital were submitted, has been sanctioned but period for rest of 639 days has been regularized as Extra Ordinary Leave. It is not clear as to why this period has not been treated as medical leave. There is no information from the applicants side also about the medical certificate for this period i.e. 639 days. In both the impugned orders dated 28.3.2006 and 22.6.2005 the fact about the medical certificates for 639 days and non-acceptance of these certificates, if issued by the Private Doctor, has not been given. The competent authority while deciding the matter of leave of the applicant should have given justification in detail as to why the medical certificates if submitted by the applicant, for 639 days has not been accepted by the authority.
6. After hearing counsel for the parties, I observe that the impugned orders are not sustainable as they are evasive on the point of the rule position as to why medical certificates issued by Registered Medical Practioner have not been accepted. In this situation, I observe that the impugned orders are not fully sustainable. Hence, the OA is partly allowed. The impugned orders dated 28.3.2006 and 22.6.2005 are set aside and quashed. The applicant is directed to submit detailed and self contained representation to the competent authority giving all the details of 639 days in the impugned orders for which EOL for private affairs has been sanctioned by the respondents alongwith the medical certificates for the same. On receipt of the detailed representation alongwith the medical certificates from the applicant the competent authority shall consider this matter again and pass a reasoned and speaking order within a period of two months from the date of receipt of representation of the applicant alongwith medical certificates. No costs.
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