Central Administrative Tribunal - Delhi
Naresh Kumar Sharma vs Union Of India on 12 February, 2015
Central Administrative Tribunal
Principal Bench
OA No.294/2015
MA No.370/2015
Reserved on : 09.02.2015
Pronounced on : 12.02.2015
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B. K. Sinha, Member (A)
Naresh Kumar Sharma
S/ Jaisingh, aged 53 years,
Under transfer to NSSO (FOD,
Ministry of Statistics & PI, Chennai
(last post held
Deputy Director General,
NSSO (FOD Hq),
Ministry of Statistics & PI
East Block-VI, R. K. Puram,
New Delhi 110 066. .... Applicant in person.
Versus
1. Union of India
Through Chief Statistician of India and Secretary
Ministry of Statistics & PI
S. P. Bhawan, Sansad Marg,
New Delhi 110 001.
2. Dr. T. C. A. Anant
Working as
Chief Statistician of India and Secretary
Ministry of Statistics & PI
S. P. Bhawan, Sansad Marg,
New Delhi 110 001.
3. Additional Director General
NSSO (FOD Hq),
Ministry of Statistics & PI,
East Block-VI,
R. K. Puram,
New Delhi 110 066. .... Respondents.
(By Advocate : Shri Rajeev Kumar and Shri R. N. Singh)
: O R D E R :
Dr. B. K. Sinha, Member (A) :
In the instant Application filed under Section 19 of the Administrative Tribunals Act, 1985, applicant has challenged the impugned order of respondent No.1 dated 12.01.2015 and pursuant thereto office order dated 12.01.2015 issued by Respondent No.3 (placed at Annexure A-1 & A-2 at pages 30 & 31 of the paper book respectively) to the extent that these have been issued without paying due salary to the applicant from the month of October, 2014 to December, 2014 (including arrears of DA) and without having given him an opportunity for applying transfer TA and other advances as admissible on outstation transfer. He has prayed for the following reliefs:-
8. (i) Quash and set aside the impugned orders Annexure A1 and Annexure A2 as null and void to the extent that they have been issued without payment of due salary;
(ii) Order payment of due salary from October, 2014 onwards (including arrears of DA admissible from 1 July, 2014);
(iii) Give an opportunity to the Applicant to apply for transfer TA and other admissible advances and be paid the same as per entitlement;
(iv) Order the period after relieving till the payment of all the dues and advances to be treated on duty;
(v) Impose exemplary cost on the Respondent-2 (holding the post of Respondent-1) for the mental harassment of the Applicant by denying his due salary for more than 3months;
(vi) Impose exemplary cost on the Respondent-2 (holding the post of Respondent-1) for the mental harassment of the Applicant in attempting to force the Applicant to join duty at Chennai while denying him even an opportunity to apply (and be paid) the transfer and other admissible advances;
(vii) Refrain the Respondent-2 (holding the post of Respondent-1) from further harassment of the Applicant; and
(vii) Any other order deemed fit and proper in the circumstances of the case.
2. The applicant is a member of Indian Statistical Service and he substantively holds the post of Deputy Director General in the respondent organisation. He submits that he has filed representation regarding filling up the post of Statistician General of India on behalf of the Indian Statistical Service Association as per rules and has also represented to various authorities including the Cabinet Secretary, the then Minister, Ministry of Statistics and Programme Implementation and also prayed for extension of NFU to 1992 batch of the statistical service officers. He had also filed a representation to the Cabinet Secretary drawing his attention to the acts and omissions and commissions in the respondent organisation (Annexure A-9 at page 40 of the paper book) and had also drawn up a report on the subject. It is the contention of the applicant that as a consequence of espousing the aforesaid cause, the applicant who was working in the department of Chemicals & Petrochemicals, Delhi, Ministry of Chemicals and Fertilisers was transferred to NSSO, FOD, Chennai vide order dated 21.07.2014. The applicant contends that he was relieved from the Department of Chemicals & Petrochemicals on 30.09.2014 but before joining his new place of posting it was conveyed to him orally that his case was being reconsidered and the post of the applicant as DDG, NSSO, FOD was kept in abeyance till further orders and presently he was attached to the office of ADG, FOD Headquarters at New Delhi vide order dated 16.10.2014, which post the applicant has joined on the very next date, i.e., 17.10.2014. Subsequently, a duty chart was prepared and the applicant was assigned certain duties with the approval of ADG, FOD vide letter dated 30.10.2014 where he continued to work in this manner. On 01.01.2015, the applicant filed a representation to his superior ADG, FOD that he had not been paid salary for the last three months, i.e., from October to December, 2014 and requested for release of the same without delay. This letter was forwarded to the office of respondent No.1 on 02.01.2015 seeking directions in this regard. The applicant was relieved from the office of ADG, FOD where he was attached with effect from the afternoon of 12.01.2015 to join at NSSO, FOD, Chennai. The applicant further contends that no opportunity was given to him to apply for the composite transfer advance due to him under the Boards instructions as contained in Swamys Compilation of the Fundamental Rules and Supplementary Rules under SR-116 for himself and for members of his family. The applicant further submits that the salary for the past three months which has not been paid from October to December should also be paid to him. He has expressed his willingness to join the transferred place subject to clearance of both the above dues. The applicant during the course of oral submissions apprehends that a conspiracy is being hatched to deprive him of his salary for the period from 1.10.2014 to 17.10.2014 treating it as unauthorised absence and to withheld his salary from 17.10.2014 till 01.01.2015 on various pretexts.
3. The respondents have filed counter affidavit denying the averments made by the applicant. They submit that no cause of action has arisen in favour of the applicant so as to invoke judicial intervention from this Tribunal. Besides, multiple reliefs have been prayed in this OA which is not allowed under Rule 10 of the CAT (Procedure) Rules, 1987. The respondents further submit that the applicant filed a representation dated 21.07.2014 (Annexure R-3 at Page 154 of the paper book) to the Minister of State (I/C), Ministry of Statistics and PI pleading violation of all time honoured government instructions issued vide OM dated 08.04.1969 regarding the policy norms to transfer out selected office bearers during their term of office. It is the contention of the respondents that the applicant had deliberately suppressed the fact that the ISSA was not recognised association and as such he was not entitled to protection over OM dated 08.04.1969. Besides, the respondents have further drawn our attention to the OM dated 16.01.2015 of respondent No.1 holding that the language of the representation submitted to the Cabinet Secretary by the applicant was intemperate and left much to be desired. The decision to transfer the applicant was reviewed and reiterated on the recommendations of the competent authority thereby revoking his attachment to the office of ADG, FOD and relieving him to take up his new assignment as NSSO, FOD at Chennai. The respondents further submit that the points raised by the applicant in his capacity as Secretary, ISSA vide letter dated 12.06.2014 have been considered at the level of respondent No.1 and it was felt that no changes were warranted in the transfer policy.
4. The respondents have further submitted in the counter affidavit that the issue of releasing the salary of the applicant as claimed by him was also examined and it was decided to treat the period from 1.10.2014 to 16.10.2014 as unauthorised absence under FR 17 (1). Accordingly, OM dated 14.01.2015 was issued relying on the provisions of FR 108 which provides that a government servant who does not join his post within joining time is not entitled to any pay or leave salary after the end of the joining time. Further, the said OM also relied on the provisions of FR 17 (1) which stipulates that an officer shall begin to draw the pay and allowance attached to his tenure of post with effect from the date when he assumes the duties of that post and ceases to draw them as soon as he ceases to discharge those duties.
5. Learned counsel for the respondents vehemently contended that there was serious doubt regarding presence of the applicant in the office of ADG, FOD Delhi, to which he was attached, on account of his not marking attendance in the Biomatric Attendance System and there being no account available for the work done by him for a part thereof. The Memo dated 22.01.2015 gives the detail for this period. It had been recommended that for the days on which the officer discussed with ADG, FOD and other senior officers/IFD and dealt with the files, it can be presumed that he attended the office. The respondents further submit that claim of the applicant regarding his retention at New Delhi on account of being the Secretary of ISSA is not tenable as the said association had not been recognised, and that the applicant has not yet joined his new place of posting. Instead, he informed the ADG, FOD vide e-mail dated 27.01.2015 that he was down with fever and would be joining after he recovers, asking leave for seven days from 24.01.2015 to 30.01.2015 and further earned leave for five days on medical grounds from 31.01.2015 to 04.02.2015, which is pending before the competent authority.
6. We have heard the applicant who appears in person and Shri Rajeev Kumar, learned counsel for the respondents.
7. We find that the applicant in the instant OA has not pressed for revocation of his transfer order, and rather confined his relief to the payment of composite transfer advance to which he is statutorily entitled, and for payment of salary for the period he was attached to the office of ADG, FOD at Delhi. He further submits that leave has already been sanctioned in respect of the period from 01.10.2014 to 16.10.2014 by the ADG, FOD as per the powers delegated to him. Here, learned counsel for the respondents was quick to point out that this leave had been sanctioned without authorisation and action was being taken against the official who sanctioned the leave. Learned counsel for the respondents was thereupon directed to place on record the files whereby action has been taken against the officer who had sanctioned the leave for the aforesaid period, to which he assured to produce the same. He also submitted some of the related files which were readily available with him in the court for our perusal.
8. To our mind the issues are simple, but appear to have been more contentious on account of non adherence to the basic principles relating to transfer and TA. We, therefore, list out the issues as follows:-
1. Whether the applicant is entitled to composite transfer advance as per the TA rules?
2. Whether the applicant is entitled for payment for the period from 17.10.2014 to 12.01.2015 when he was relieved?
9. Insofar as the first issue is concerned, it is well recognised general principle that a government servant under orders of transfer is entitled to transfer allowance as well as to the travelling costs for himself and for the members of his family. The term family has also been defined under S.R.2 (8) of the Swamys Compilation of FRSR, which reads as under:-
(8) Family means a Government servants wife or husband, as the case may be, residing with the government servant and legitimate children and stepchildren residing with and wholly dependent upon the Government servant.
10. The Transfer Travelling Allowance (TTA) is admissible to central government employees who are under orders of transfer. Where the transfer is made at the same station no TA is admissible, if there is no change in residence involved. However, in cases of change in residence, the actual cost of conveyance for self and family members limited to road mileage and actual cost of transfer subject to the prescribed limit and composite transfer grant equal to 1/3rd of basic pay is admissible. However, where the transfer is to a different station involving change of residence at a distance of more than 20 kms, the employee concerned will be entitled to the following:-
1. A composite transfer grant equal to one months basic pay.
2. Actual fares for self and family for journey by rail, steamer or
3. Road Mileage for journey by road between places not connected by rail
4. Cost of transportation of personal effects from residence to residence and
5. Cost of transportation of conveyance possessed by the employee. These entitlements have been covered under different provisions of FRSR and TA Rules including GOI OM dated 23.09.2008 and Comptroller and Auditor General Audit Manual and provisions of FRSR Part-II relating to travelling allowances and SR 116-A. Provisions of SR-116A provides S. R. 116-A. A Government servant transferred from one post to another, under the orders of Competent Authority, if permitted to hand over charge of his old post or to take over charge of the new post at a place other than the headquarters, is entitled to the following concessions:-
(a) Travelling Allowance at tour rates for the Government servants actual journeys-
(i) from the old headquarters to the place of handing/taking over charge;
(ii) from the place of handing over charge to the place of taking over, and
(iii) from the place of handing/taking over charge to the new headquarters.
(b) Difference of travelling allowance between transfer and tour scales for the actual distance by the shortest route from the old headquarters, to the new headquarters, viz.,-
(i) *******
(ii) *******
(c) In addition travelling allowance for the conveyance of family and personal effects will be admissible from the old headquarters to the new headquarters at the prescribed rates and conditions.
Thus, it remains uncontroverted that the applicant was entitled to TA as per the rules cited above.
11. We also take into account that the applicant was relieved at the first instance on 30.09.2014 from the Ministry of Chemicals and Fertilisers. We further take into account that while transfer of the applicant had taken place on 21.07.2014 for NSSO, FOD, Chennai there was ample opportunity for him to have applied for and availed transfer advance, which he did not do. This we attribute to the fact that he had submitted representation including the one against his transfer for its cancellation.
12. Again we find that transfer of the applicant had been put in abeyance and he was given an opportunity to join the office of ADG, FOD, Headquarters at Delhi and he was relieved suddenly on 12.01.2015 to join at NSSO, FOD, Chennai, as is revealed by both the impugned orders. We are also reluctant to accept the contention of the applicant that the letters were served on him on the following date after the relieving had taken place. In any case, we do not find from the records anywhere that opportunity was given to the applicant to apply for transfer advance.
13. It emerges from the above discussions that transfer advance is the right of a transferred employee who fulfils eligibility for the same and it cannot be denied. We also take note of the fact that the existing circumstances were such that the applicant was relieved suddenly on 12.01.2015 without having been given an opportunity to apply for transfer advance. It stands to reason, as noted hereinabove, that the transfer advance under SR 116A has several components and each has its assigned function. Therefore, we decide the first issue that transfer advance must be given to the applicant in order to enable him to undertake the journey.
14. Now we come to the second issue for payment of salary for the period from 17.10.2014 to 12.01.2015. It goes without saying that to get paid for the work done is the basic minimum right of an employee and is non-negotiable. One of the basic principles under FR 17 is that an officer shall begin to draw the pay and allowances attached to his tenure to 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. For the sake of greater clarity and better elucidation FR 17 is reproduced herein below:-
F.R. 17 (1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall 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.
(2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed.
15. We find that the respondents in their counter affidavit have submitted that the period from 17.10.2014 to 12.01.2015 will have to be decided separately in light of the application of principle of no work no pay and have given the following chart in lieu thereof:-
Sl.
No. Period Treatment of the period
1. 1.10.2014 to
16.10.2014 FOD has clarified that the leave sanctioned in FOD to Shri Sharma during this period is illegal and the same has also not been approved at the competent level in FOD. The fact that remains that the period from 1.10.2014 to 16.10.2014 is covered under unauthorised absence without any prior sanction of leave, and the same is to be decided in the Ministry by the CCA.
Since this period of absence is covered under unauthorised absence for which the Ministry has granted opportunity to the officer to make representation, therefore this period has to be decided after considering the explanation received from the officer.
2. 17.10.2014 to 16.11.2014 Since the officer was not marking his biometric attendance, prima facie the conclusion is that he was not attending the office and therefore he is not entitled for salary. However, to give a fair examination, the details of the works/meetings/deliberations etc. In which he has contributed will be assessed by calling the files/records of the FOD to determine the issue of his salary based on rules and the principles of no work no pay.
3. 17.11.2014 to 19.12.2014 Since during this period he was on AMP Training, his salary and allowances may be released in normal course. As has been decided vide notes at pages 2-3/ante in consultation with IFD, the salary for this period may be released from Chennai against the post at Chennai (once the officer joins his post at Chennai).
4. 20.12.2014 to 12.01.2015 Since the officer was not marking his biometric attendance, prima facie the conclusion is that he was not attending the office and therefore he is not entitled for salary. However, to give a fair examination, the details of the works/meetings/deliberations etc. in which he has contributed will be assessed by calling the files/records of the FOD to determine the issue of his salary based on rules and the principle of no work no pay.
We will take up the aforesaid periods one by one. Insofar as the period from 1.10.2014 to 16.10.2014 is concerned, it has been deemed to be unauthorised absence. However, we take note of the fact that the applicant had submitted his leave application for the said period and the same was duly sanctioned by the ADG, FOD, Delhi vide order dated 11.10.2014 (Annexure R-J at page 209 of the paper book). The applicant has also produced a copy of the order dated 09.10.2014 whereby power has been delegated to various leave sanctioning authorities. From perusal of the same, it appears that the ADG, FOD/Incharge is competent to sanction leave up to a period of thirty days to an officer of the rank of DDG. Beyond the period of thirty days, the DG and the Chief Executive Officer are competent. This leaves us with no doubt that the leave was duly sanctioned under delegated authority of the ADG, FOD. From the perusal of the file, it appears that this was within the knowledge of the respondents, particularly, respondent No.2. We have also found that it has been treated not covered by FR 17-A for which explanation is to be obtained from him. The fact that the leave sanctioned to the applicant by ADG, FOD is per se irregular appears to be in utter disregard of their own authorisation made vide OM dated 19.10.2012 (Annexure RJ-3 of the rejoinder). The respondents have made efforts to hold that the leave sanctioned to the applicant from 1.10.2014 to 16.10.2014 was not within the competence of ADG, FOD. For the sake of clarity, we reproduce the relevant paras from the note of Sh. D. K. Sharma, Under Secretary (ISS) in File No.28022/49/2010, which reads as under:-
8. In this case, the following irregularities/discrepancies are apparent:-
(i) Vide letter dated 13.10.2014, Shri Sharma, DDG conveyed that he intended to join FOD, Chennai after availing joining time, but on account of personal reasons he could not do so. Accordingly, he requested for EL from 13.10.2014 to 17.10.2014. This request for leave was not agreed to and the same was informed to Shri N. K. Sharma and ADG, FOD.
(ii) Shri N. K. Sharma after joining on attachment at ADG, GOD, Headquarters on 17.10.2014 submitted leave application to ADG, FOD from 1.10.2014 to 16.10.2014 requesting for EL whereas in his earlier letter dated 13.10.2014 addressed to Secretary, he stated that after availing joining time he intended to join FOD which he could not do and accordingly he sought EL from 13.10.2014 to 17.10.2014. Concealing/ignoring this, he submitted a revised leave application dated 17.10.2014 in FOD.
(iii) In this case it is pointed out that Shri Sharma, DDG who was relieved from Ministry of Chemicals & Fertilisers did not report to duty and was accordingly absconding from office between 01.10.2014 to 16.10.2014. The leave application submitted on 13.10.2014 for five days was not approved. After joining FOD, Hq, it was not within the competence of the ADG FOD to sanction the leave. This case being covered under unauthorized absence without any prior sanction of leave was to be decided in the Ministry by the Cadre Controlling Authority.
(iv) Further, the leave sanctioned by FOD is per se irregular, too, as the same has not been decided at the competent level in FOD (that is, the competent level for deciding leave for periods subsequent to 17.10.2014, when he reported on attachment to FOD, Headquarter) and the same was irregularly approved and sanctioned at the leave of Sr. Administrative Officer. In view of the above, we go by the simple principle that once the powers have been delegated to ADG, FOD, it was for him to exercise that power. It appears that the respondents are going out of their way to treat this period as unauthorised absence.
16. Now we come to the point as regards marking attendance by the applicant in the biometric system. The applicant has produced a copy of the Memo dated 28.01.2015 regarding the instructions for biometric attendance system which has been issued by the Ministry of DOP&T. From a perusal of the same it appears that there is huge difference between the number of registered employees and the number of employees marking attendance in the biometric attendance system (BAS). It reads as under :-
OFFICE MEMORANDUM Sub : Introduction of AADHAR enabled bio-metric attendance system.
The undersigned is directed to refer to Secretary, DEITYs DO letter no. SSD/DeitY/BAS/2014-74 dated 23.12.2014 (copy enclosed), observing that in many offices there is a large difference between the number of registered employees and the number of employees marking their attendance in the Biometric attendance system (BAS). The Secretaries of all Ministries/Departments have been requested to issue directions to all employees to mark their attendance in BAS Portal on regular basis.
2. As per the Guidelines issued vide O.M. No.11013/9/2014-Estt. A-III dated 21.11.2014, it has been decided to use an AADHAR Enabled Bio-metric Attendance System (AEBAS) in all offices of Central Government, including attached/Subordinate offices, in India. All employees are, therefore, required to register themselves in the system and mark their attendance. Instructions already exist for dealing with cases of late attendance/ unauthorized absence, which may be followed.
3. It is requested that necessary directions may be issued to all employees to mark their attendance in BAS portal on regular basis. From the above, it appears that the system was not fully operational. In any case, when a person joins new, the department take steps to capture his iris and finger print impressions and it may take some time to be operationalized. It is not that they will be operationalised from day one. Therefore, we find that there is a forced attempt to deny the payment to the applicant.
17. The applicant has also questioned that a large number of employees have not been marking their attendance before their full payment was released. The applicant has drawn attention to the fact that though 20-21 December were Saturday and Sundays, yet the respondents have taken the plea of not marking the biometric attendance on those days for denying pay to the applicant. The applicant further submits that as his earlier attendance ID was not traceable in the MoSPI, he got himself registered on 25.12.2014 immediately after returning from training on 20.12.2014 and joining office on 22.12.2014. He further requested the authorities to provide requisite biometric device to facilitate marking of his attendance which was pending with UID office. This appears substantiated by the email reply of the UID office dated 1.01.2015 that applicants attendance ID 288048 has been activated in response to his e-mail query dated 25.12.2014, which reads as under:-
Dear Sir/Madam You have successfully registered in the Biometric Attendance System (BAS).
Your Registration no. is : 288048 Your Mobile No. Is : 9818254703 Regards, Attendance.gov.in Team
18. Therefore, the applicant could not have obviously marked his attendance during the period from 17.10.2014 to 16.11.2014 or from 20.12.2014 to 12.01.2015 for want of installation of the Biometric Attendance System. Insofar as the period from 17.11.2014 to 19.12.2014 is concerned, admittedly, the applicant had been on training at AMP Training under due authorisation. A person cannot proceed on training sponsored by the State without due authorisation from the government and is entitled to full pay and allowances admissible during the training period. Therefore, the question of withholding pay and salary for that period does not arise at all. At the end, we further take note of the fact that every government employee is not only entitled to payment of salary but the payment should be made timely on conclusion of the last day of the month. If these shortcomings were noted the applicant should have been informed at that time. Pay can only be withheld under certain conditions that include FR 17-A or FR 108. For sake of clarity, we reproduce FR 108, which reads as under:-
F.R. 108. A Government servant who does not join his post within his joining time is entitled to no pay or leave salary after the end of the joining time. Wilful absence from duty after the expiry of joining time may be treated as misbehaviour for the purpose of Rule 15.
19. The applicant has relied upon a decided case of the Honble Supreme Court in the matter of Zenit Mataplat P. Ltd. Vs. State of Maharashtra and others [(2009) 10 SCC 388]. However, we find that the facts of the said case are not similar to the present one and, therefore, it cannot be relied upon.
20. In case of R. L. Gupta vs. Union of India and Others [1985 ILR 2 Delhi 565], the Honble High Court of Delhi laid down conditions under which pay of a government servant could be withheld, the fundamental condition being that pay of no government servant could be held without notice. In State of Bihar vs. Upendra Narayan Singh & ors. [2009 (5) SCC 65], the Honble Apex court has categorically held that a mistake made by one party could not be compounded by making another mistake by the other party, where illegal appointment of teachers was in question, the remedy was to enquire into the mode of appointment and not to stop the salary of the employees. We have already seen as to under what circumstances, salary of an employee may be stopped. However, under the present circumstances, no notice was issued, and yet no salary was paid to the applicant for more than three months.
21. Before parting with the issue, we would like to conclude that in the files we find that a good deal of efforts are being made to prove why salary should be denied to the applicant. For instance in File No.A-19011/34/2014-E-1, the authorities have gone into micro detail looking for one excuse or the other presumably looking for one pretext or the other to deny salary. However, we find no deliberate explanation as to why leave sanctioned under due authorisation by a competent authority is said to be treated as no leave, which would appear from the following chart:-
Sub : Treatment of different periods for grant of salary and allowances in respect of Shri N. K. Sharma, DDG. MoSPI vide OM No.PF/NKS-841012-ISS dated 22.1.2015 on the above subject, has requested for making available the relevant files/records available for the period from 17.10.2014 to 16.11.2014 and 20.12.2014 to 12.1.2015 (Sl. No.2 and 4 of the OM). Accordingly, details of works/meetings/deliberations of Shri N. K. Sharma, DDG, during his posting at FOD Hqrs from 17.10.2014 to 12.1.2015 are furnished below with details of the documents which show the presence of Shri N. K. Sharma in the office:-
Sl. No. Date Remarks Oct 2014: 9 working days (excluding Saturday, Sunday, G.H. and RH on 24.10.2014)
1.
17-10-2014 Joined FOD Hqrs as DDG- (Copy of the joining report is at Flag F/A)
2. 22-10-2014 Attended office (Copy of the application dated 22-10-2014 for RH on 24-10-2014 at Flag F/B)
3. 24-10-2014 Availed RH (Application at Flag F/B) Nov 2014: 7 = working days (excluding Saturday, Sunday G.H. and = CL on 14.11.2014)
4. 7-11-2014 Attended office (Signed on the link file at notesheet at page 80 Flag F/C request for posting of PA/PS and request for PC at Flag FD)
5. 10-11-2014 Submitted a note to ADG on LDC RRs (Flag F/E of link file) of Cadre Restructuring File of Admn. Staff of FOD
6. 14-11-2014 Attended office and also availed half day C.L.- (his signed note for payment salary, application for CL & book transfer of desktop/laptop at Flag F/F)
7. 17-11-2014 to 19-12-2014 AMP training at Kolkata Dec 2014: 7 working days (excluding Saturday, Sunday & G.H.)
8. 22 to 24-12-2014 Attended office and had a discussion with dealing hand regarding Biomatric attendance (Statement of Miss Arti, LDC at Flag F/G) Jan 2015: 7 = working days (excluding Saturday, Sunday & G.H. )
9. 1-1-2015 Attended office and had a meeting with ADG and all other staff on New Year besides note at Flag F/Hfor non-payment of salary.
10. 2-1-2015 Half day CL for F/N- (Signed application at Flag F/I)
11. 8-1-2015 Had a discussion with DD (Rawat) & Admn Staff (Note dated 8.1.2015 submitted by both to DDG (NKS) is placed at Flag F/Jof link file)
12. 9-1-2015 Submitted a note to ADG on pending matters relating to Administrative Staff of FOD at Flag F/Kof link file.
13. 12 & 13-1-2015 Casual leave (application available at Flag F/L)
14. 14-1-2015 Relinquished charge on transfer to RO Chennai- (copy of the charge relinquishing report at Flag F/M)
22. We would have been inclined to find it out whether it is negligence or lack of knowledge which was responsible for denial of salary to the applicant. However, from the perusal of the files we find that it was fully within the knowledge of the respondent authorities. We also find that implausible excuses have been made to deny payment of salary to the applicant, which have been dealt with above. For instance, the period during which the applicant was on training under due authorisation has also not been reckoned as a legitimate period spent on duty. Regarding biometric attendance we have already noted and the exchange of e-mail also prove that the biometric ID which is based on finger print impression and capture of retina has not been uploaded on the server till 12.01.2015. We do not approve the action of the respondents in withholding the salary of the applicant without calling for any explanation from him. No doubt, salary could be withheld but under the circumstances and after following the procedure as noted above, which has not been done in the instant case. It scarcely needs to be emphasised that Government is a model employer. The employee may commit mistake but before taking action against him, he must be given a reasonable opportunity to explain, but should not be condemned without giving due opportunity.
23. In view of the facts and discussions made above, we find that in respect of both the aforesaid issues, we are satisfied that due composite transfer advance has not been paid to the applicant as per his entitlement and a good deal of effort is being vested within the department which could have been better utilised to things of national interest in denying salary to the applicant. Therefore, we direct
1. That the applicant will apply, upon receipt of copy of this order, for TA as per his entitlement to the respondents, who will sanction and pay the same to him within a period of three days of such application being received. The applicant shall join his new place of posting without availing joining time.
2. Salary and allowances for the period from 01.10.2014 till his joining to the transferred place will be paid to him by the controlling authority at FOD Chennai within 15 days of his joining. There shall be no order as to costs.
(Dr. B. K. Sinha) (Syed Rafat Alam) Member (A) Chairman /pj/