Central Administrative Tribunal - Delhi
Tejinder Kaur vs Secretary on 24 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No.238 of 2009
With
MA No.637 of 2010
New Delhi this the 24th day of March, 2011
Honble Shri Shailendra Pandey, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
Tejinder Kaur,
R/o M-16, Green Park (Main),
New Delhi-110016
Applicant
(Applicant in person)
VERSUS
1. Secretary,
Department of Women & Child Development,
Union of India, Room No.601, A-Wing,
Shastri Bhawan,
New Delhi
And Vice Chairperson, NIPCCD, New Delhi.
2. National Institute of Public Corporation,
& Child Development (NIPCCD) through
Its Director,
5, Siri Institutional Area,
New Delhi-110016. Respondents
(By Advocate: Shri H.D.Sharma with Sh.
Satish Kumar)
O R D E R
Dr. Dharam Paul Sharma, Member (J) The applicant herein filed Civil Writ Petition No.4041/2000 in the High Court of Delhi. The said petition stands transferred to this Tribunal vide High Courts Order dated 12.01.2009 pursuant to Notification SO 906 (E) dated 22.04.2008 extending the jurisdiction of this Tribunal to the service matters pertaining to National Institution of Public Corporation and Child Development.
2. The dispute between the parties relates to rejection of applicants request for leave for the period 9th October to 28th October, 1998, 31st October, 1998 to 22nd November, 1998 and 28th November.1998 to 26th February, 1999 whereby the said period was ordered to be treated as dies-non which would not count for duty for all purposes viz. increment, leave and pension. Challenging this action of the respondents, the applicant seeks quashing of Memorandum dated 15.12.1999 and two other Memorandums of even date i.e. 21.01.2000 as at paper Nos.112, 113 and 114 of the paper book respectively.
3. The applicant has sought direction to the respondents for returning to the applicant a sum of Rs.4201/- said to have recovered illegally from her salary for the month of June, 2000 and further direction restraining the respondents from further deducting any amount from the salary on account of leave salary already paid to her for the leave period.
4. The Memorandum dated 15.12.99 at page 112 of the paper book is a show cause notice calling upon the applicant to show cause as to why the period from 31st October, 1998 to 22nd November, 1998 and 28th November, 1998 to 26th February, 1999 may not be treated as dies-non which would not count as duty for all purposes viz. increment, leave and pension consequent upon rejection of applicants request for sanction of leave by the respondents for the said period. The applicant submitted reply to the said notice, a copy of which is at page 111 of the paper book wherein it has, inter alia, been stated that the Honble High Court of Delhi in CWP No.6669/98 had directed the Institute to process leave applications and to pay salary on or before 10.3.99 and, therefore, the proposed action was violative of the directions of the Honble Court dated 26.02.99 as referred to above. This, however, did not find favour with the respondents. Accordingly, Memorandum dated 21.01.2000 at page 113 of paper book was issued by the respondents declaring the period in question as dies-non. The Memorandum dated 21.01.2000 as at page 114 of the paper book is again a show cause notice proposing the period from 9th- 28th October, 1998 as dies-non and calling upon the applicant to show cause there against. When the matter came up for hearing, the applicant appearing in person stated that this Memorandum relating to the period 9th October to 28th October, 1998, no longer survives for consideration in view of the fact that the memorandum declaring dies-non has been rescinded by the respondents pursuant to the directions issued by a Co-ordinate Bench of this Tribunal in TA No.162/2009 dated 15.05.2009. The issue involved in these proceeding is confined to Memorandum dated 21.01.2000 with regard to period from 31st October, 1998 to 22nd November, 1998 and 28th November,1998 to 26th February,1999 and consequent recovery from her salary for this leave period. This issue should have been dealt with by the respondents on the line of which the period of absence has been regularized by them in terms of Order in TA No.162/2009 dated 15.05.2009 for parity of reasons. The applicant has drawn our specific attention to Para 10 of the Order dated 15.05.2009 in TA-162/2009 referred to above, the said Para 10 of which reads as follows:-
10. Applicant has raised certain legal grounds apart from the factual statements, namely, that she had already applied for leave on 9.10.1998 itself, her leave was not rejected, she has already been paid the leave salary for the period 9.10.1998 to 28.10.1998 and even in the attendance register the remark for the said period is leave applied for. In these circumstances, respondents are directed to consider whether the said period can at all be considered as unauthorized absence keeping in view the above contentions and the direction given by the Honble High Court of Delhi on 26.2.1999 to consider the application for leave and to pay her the salary due on or before 10.3.1999 and to pass fresh reasoned order on the show cause notice within a period of 8 weeks from the date of receipt of a copy of this order under intimation to the applicant.
5. The facts of the case in so far as they relate to the present issue are that the applicant while working as Research Assistant with the Respondents Institute in 1998, was transferred and posted to NIPCCD vide Respondents Institute Order No.166/98 dated 30.9.98/07.10.1998. The applicant challenged the same in CPW No.6669/1998. In the meantime she proceeded on leave from 9.10.98 to 28.10.98 which was regularized as referred to above. The applicant had 206 Earned leave to her credit as on 6.10.98 as is evident from Office Order of even date, a copy of which is as at Annexure VI (page 56 of the paper book). The applicant thereafter kept on submitting applications for further leave from time to time excluding holidays prefixing and suffixing, as the case may be. Copies of these applications are at page 49 to 55 of the paper book. The respondents did not pass any order on these leave applications inspite of the applicants repeated reminders. Some of these reminders are dated 6.11.98 and 24.12.98 as at Annexure-VII and VIII. Having failed to receive any response from the respondents, the applicant filed CMP No.584/99 in CWP No.6669/1998 praying for direction to the respondents to issue leave orders and pay salary dues. Copies of the leave were attached to said CMP. On 26.2.1999, the Honble High Court, inter alia , passed the following Order:-
26.02.99 Present: Mr. Vikas Sing for petitioner.
Mr. Neeraj Kaul for respondent No.1 Mr. A.K.Singla for respondent No.2 CW No.6669/98 & C.12337/98 I heard the learned counsel for the parties Mr. Vikas Singh for the petitioner and Mr. A.K.Singla for respondent No.2.
It is stated by Mr. Vikas Singh, the learned counsel for the petitioner, that the petitioner had been transferred from Women Development Division to Monitoring and Evaluation Division. It is stated by Mr. Singla, the learned counsel for the respondent No.2 that the petitioner did not apply for leave nor did she report for duty. It is stated by Mr. Vikas Singh that she had applied for leave.
The second respondent shall consider the application for leave and the petitioner shall report for duty on duty on 1.3.1999 and the second respondent shall pay her the salary due on or before 10.3.1999.
Post this writ petition for disposal along with CW-5031/94 before the Division Bench on 11.5.1999, subject to the orders of Honble the Acting Chief Justice.
6. Pursuant to these directions, the applicant reported for duty. The respondents issued Memorandum dated 10.03.1999 (Annexure D at page 75) calling upon the applicant to submit her application for leave from 31.10.98 to 28.2.99 in the prescribed proforma through proper channel for consideration. The applicant replied to the said Memorandum vide her letter dated 15.3.99 as at page 76 of the paper book, controverting the averments made therein claiming that she had already applied for leave and photocopies of all E.L. applications upto the date of filing CMP-584/94 in CWP-6669/98 were on record along with reminders addressed to and acknowledged by S.O. (P), Director and Secretary (WCD) Cum Vice-Chairman, NIPCCD. Notwithstanding this, the applicant once again enclosed photocopies of the leave applications as Annexure A-II to the reply. The applicant submitted that these applications are in the prescribed proforma as can be seen on the face of these applications. The applicant was informed by the respondent vide their Memorandum dated July 16, 1999, a copy of which at page 81 of the paper book that the photocopies of her leave applications submitted earlier could not be considered for regularization in the absence of any valid application for leave and, therefore, advised the applicant to submit a fresh application for leave for the period 31.10.1998 to 28.2.1999 except for the period 23 th -27th November, 1998. The applicant replied to this vide her letter dated 20.07.1999, a copy of which is at page 82 of the paper book enclosing therewith 9 leave application (duplicate) in original with reply as were submitted to the Institute earlier in which, inter alia, she claimed that the applicant was never absent from duties and she had applied in advance through proper channel , copies of duplicate leave applications are as at page 83 to 91 of the paper book. Since the application was not made payments in terms of the Honble High Courts Order dated 26.02.1999, the applicant made representation on 21.7.1999 to the Secretary (WCD) cum VC, NIPCCD through proper channel as at pages 92 to 94 of the paper book requesting that the directions be issued to comply with the directions of the High Court and to issue the leave order and pay the salary dues. This was followed by another representation dated 3.12.99, copy of which is at page 103 of the paper book alleging non-compliance of the Honble High Court Order dated 26.2.99. It was, inter alia, stated in the said representation that 2. Moreover, repetition of the contentions and stand of the Institute already rejected by the Honble Court shows an attitude of defiance towards the authority of the Honble Court. Since NIPCCD did not have nay valid case for challenging the said order, the order was allowed to become absolute and, therefore, it should be honourably complied with.
3. There is no provision in the rules to deny leave after six or more months of having been allowed to avail leave. Also, the Institute on its part had failed to show any exigency of work, due to which it could have denied leave at the presecribed point of time. As you are aware through CMP No.584/99 in CWP No.6669/98, a part of the leave was spent on expedient personal work and another part on record from illnesses, which were treated at the Institute itself by Dr. Dinesh Paul, JD(H) NIPCCD and bills were payed by the Institute. I am enclosing copies of the Medical Certificates issued by Dr. Dinesh Paul, JD (H), NIPCCD, certifying that the period of absence from duty was absolutely necessary to restore health. Thus, denial of leave under such circumstances would be the worst form of harassment in the history of the Institute and the Governmental set-up.
7. Accordingly, the applicant requested to the Secretary (WCD) Cum Vice Chairperson, NIPCCD to direct to ensure compliance of the Honble Courts Orders. The applicant has annexed copies of four medical certificates advising rest on medical ground for seven days, two weeks, five days and further five days respectively as at pages 107 and 108 of the paper book. Notwithstanding the aforesaid, the applicant was informed vide Memorandum dated 1.11.99 that leave applied for was not on bona fide ground and, therefore, the competent authority rejected the applications for earned leave from 30.10.98 to 22.11.98 and 28.11.98 to 26.2.99 with suffix for 27-28 February,1999. This was responded to by the applicant vide her application dated 3.12.99 addressed to Secretary (WCD) Cum Vice Chairperson of the Institute requesting for reconsideration of the directions of the Honble High Court in compliance of the Order dated 26.2.1999 and to pay her salary dues especially in view of the fact that the revised leave applications were submitted at the request of the Institute. The respondents did not respond to it instead they issued Memorandum dated 15.12.1999 calling upon the applicant to show cause as to why the period 31th October, 1998 to 22nd November, 1998 and 28th November, 1998 to 26.2.1999 should not be considered as dies non which would not count as duty for all purposes viz. increment, leave and pension, a copy of which is at page 112 of the paper book. The applicant replied to this Memorandum, a copy of which is at page 111 of the paper book. Thereupon, the respondents Institute issued Memorandum dated 21.1.2000 a copy of which is at page 113 of the paper book informing that the period of absence mentioned in the Memorandum would be treated as dies non as the applicant did not offer any worthy reason for not doing so. On the same day, the applicant was issued another Memorandum of even date in respect of the period from 9-28 October,1998 calling upon her to show cause as to why this period be not treated as dies-non. The Memorandum too was impugned in these proceedings but the same longer survives for consideration as the respondent Institute regularized this period as leave later on.
8. The applicant was also instructed vide Memorandum dated 1.09.1999, a copy of which is at page 96 of the paper book. It was stated therein that the applicant should seek leave for the entire period from 30.10.98 to 22.11.98 and 28.11.98 to 26.2.99 within one week from receipt of the Memorandum to enable the Institute to take further action in the matter. In the applications submitted by her for sanction of earned leave vide letter dated 20.7.1999, she excluded Saturdays and Sundays falling after each spell of leave. The applicant complied with this direction and submitted her revised applications for leave, copy of which are at pages 98 and 99 of the paper book, one for 24 days from 30th October.1998 to 22nd November,1998 and another for 91 days from 28th November,1998 to 26th February,1999
9. The respondents filed their counter affidavit controverting the submissions of the applicant. It has, inter alia been submitted that the competent authority while passing orders has not acted illegally or arbitrarily and acted as per the provision of the rules. There is no violation of the directions of the Honble High Court made in CWP No.6669/98. The allegation of malice is devoid of merits in the absence of necessary details and particulars. It has further been submitted that as a matter of fact, the applicant had proceeded on leave on account of his transfer which she had challenged in CWP-6669/98 and she joined her new place of posting only upon order of the Honble High Court dated 26.2.1999. Earlier she left the office by leaving her leave application to avoid the transfer order. The case of the applicant was duly examined by taking into consideration her reply to the Show Cause Notice whereupon the competent authority decided to treat the period of absence as dies-non not to be counted as on duty for all purposes. The orders passed in the matter are as per the applicable rules and administrative instructions on the subject.
10. At the hearing of the case, the applicant contended that the impugned order of the respondents are contrary to the Honble High Courts Order dated 26.2.1999 which directed the respondents to consider her application for leave and to pay her salary before 10.3.1999. The applicant had reported for duty pursuant to these directions. Contrary to these directions of the Honble Court, the respondents treated the said period of absence as dies-none and that too without any justification. As a matter of fact, the applicant had sufficient Earned leave to her credit. She had applied for leave in advance. Even in the Attendance Register, a remark was made leave applied for. Therefore, the said period could not have been treated as unauthorized and consequentially dies-non. It was open to the respondents to reject her applications for leave but they did not reject the leave applications and allowed the applicant to avail the leave. By no stretch of logic, this period can be viewed as unauthorized absence for the applicant had duly applied for leave for these periods which were not rejected by the respondents. She was having sufficient leave to her credit. Had the respondents rejected the leave before the same could be availed of by the applicant, the plea of unauthorized absence could have some substance. The applicant was neither informed of rejection of her leave applications nor was called upon to resume her duty any time. The applicant had not taken any departmental action for unauthorized absence. As such, the order for treating the period as dies-non is not sustainable. As a matter of fact, the impugned order of the respondents smacks of vindictiveness as the applicant had dared to vindicate her right through due process of law which perhaps was not too liking to the respondents. It has further been submitted that the impugned memorandum merely stated that the applicant had not offered any worthy reason and therefore, the competent authority directed the period of absence to be treated as dies-non. This clearly shows that the contentions raised by the applicant in her representation were not given due consideration. The order is bad for non-speaking one and is liable to be quashed as such.
11. The applicant has drawn our attention in this regard to para 8 of the Order dated 15.5.2009 in TA-162/2009 wherein in the similar circumstances, the respondents offered to reconsider the applicants request for grant of leave and to pass fresh orders. The said para 8 reads as follows:-
8. At this juncture counsel for the respondents submitted they would consider applicants appeal and pass fresh orders, therefore, TA may be disposed off with directions. We, however, find that even at the time of issuance of Memorandum dated 19.12.2000 respondents have issued a non-speaking order. It simply states that the competent authority has found she has not been able to show any good reasons not to declare here absence from 9.10.1998 to 28.10.1998 as dies non. This clearly shows none of the contentions raised by the applicant have been considered, therefore, Memorandum dated 19.12.2000 is also liable to be rejected. Similarly Memorandum dated 5-9/12/2002 is also liable to be quashed as it has been passed on the premise that appeal was not maintainable. Accordingly, the matter was considered afresh and the period of absence from 9.120.98 to 28.10.98 was regularized. In the similar set of facts, there is no reason why a different approach can be taken by the respondents in respect of the periods of absence in the present case in the same circumstances.
12. The applicant referred to the administrative instructions issued under Rule 7 of the CCS (Leave) Rule, 1972 directing that the Government servant should be encouraged to take leave regularly. Although leave cannot be claimed as a matter of right yet the leave applied for should ordinarily be granted subject to the rider that leave can be refused in exigency of service. In other words, if there is no exigency of service, leave aught not to be refused. The respondents have not shown any exigency of service while not sanctioning the leave applied for by the applicant when she had sufficient leave in her credit.
13. The learned counsel for the respondents has drawn our attention to the bye-laws of the Institute, copy of which is at Annexure-II of the original application (at page 46 of the paper book) which deals with the powers for granting leave to the officers of different levels. It was contended that the respondents had full power in the matter of grant of leave. The learned counsel has further drawn our attention to the Memorandum dated March 10, 1999, a copy of which is at page 75 of the paper book whereby the applicant was asked to submit her leave application. It is stated in the said Memorandum that it is the responsibility of the employee to submit leave application for absence. The learned counsel has further drawn our attention to Memorandum dated March 16, 1999, a copy of which is at page 78 of the paper book, whereby while sanctioning leave from 2nd March to 5th March,1998, the applicant was advised not to absent herself from duty except by way of prior sanction of leave. Inspite of this, the applicant continued to indulge in her demeanor of proceeding on leave by submitting applications without having proper sanction therefor.The learned counsel for the respondents referred to the case of T.C. Kaushik Vs. Union of India (W.P. (C) No.17528/2004 decided on 05.08.2010). In this case, the petitioner was proceeded against in a departmental inquiry for authorized absence and was awarded penalty of reduction of pay by two stages for a period of 2 years during which period he would not earn increments while upholding the penalty, the Court made certain observations deprecating the act of not reporting for duty without obtaining leave.
14. In response to the aforesaid, the applicant submitted that the applicant could only apply for leave in time. The respondents should take their decision in such leave application expeditiously. They did not do so instead of repeated reminders of the applicant. In such a situation, an employee would never be able to avail leave if prior sanction is necessarily insisted upon before proceeding on leave. Sanction of the leave is not in the hands of the applicant. She can only apply for leave which she has done and there is no fault on her part on this count. Since she has sufficient earned leave to her credit, the same can be availed of by the applicant at her own volition depending upon her own needs and requirement. There is nothing in the rules prescribing any ground for availing leave. Nor do the rules prescribe prior sanction as a condition precedent for availing any leave. The only rider is that the leave can be allowed or refused by the sanctioning authority keeping in view the exigency of work. Neither any exigency of work was pointed out by the respondents in this case nor has any reason been given as to why they have not taken timely decision in the matter. The respondents had never rejected the leave applications during the period for which the leave was applied for. Nor they ever called upon the applicant to join back her duty after conveying rejection her request for leave. In these circumstances, the leave cannot be viewed as unauthorized absence. In any case, the respondents have not come forwards with any plausible explanation as to why the leave in question has been declined while in respect of other spell of leave applied for by the applicant, the same has been regularized by granting ex post facto sanction. For parity of reasons, the leave in question should also have also been similarly regularized by granting necessarily sanction ex post facto in the same manner as has been done for the period from 9th October to 28th October,1998 vide Office Order No.86/2009 dated 01.07.2009, that is after more than a decade of availing the leave in 1998.
15. We have given our careful consideration to the respective submissions made by both the parties. We have also carefully perused the records of the case.
16. The dispute between the parties revolves around three spells of leave; namely 9th October to 28th October, 1998, 31st October, 1998 to 22nd November, 1998 and 28th November.1998 to 26th February, 1999. The two days between 1st and 2nd spells of leave i.e. 29th October and 30th October, 1998 are already stated to have been recommended for grant of leave as is stated in the leave application form. The applicant had applied for leave for all this period in the same circumstances and on the same ground. She had earlier applied for leave in piecemeal excluding prefix and suffix being holidays. Later on, she was asked to submit revised application for this period for the whole spell including holidays. The circumstances in which and the reasons for which the leave applied for nevertheless remained the same. The treatment proposed to be meted out to these three spells of leave has also been the same. The respondents rejected the leave for all these three spells and treated the period as dies-non. Later on, they regularized the first spell from 9th October, 1998 to 28th October, 1998 by regularizing the period as leave in terms of Order of the Co-ordinate Bench of this Tribunal dated 15.5.2009 in TA No.162/2009. Since the other two spells have also been on the same footing, they too deserve to be meted out the same treatment as in first spell of leave for parity of reasons. There is no apparent explanation or justification for taking a different view in respect of 2nd and 3rd spells. In the absence of any plausible justification, the decision of the respondents in respect of last two spells is arbitrary.
17. The observations, made by this Tribunal in its Order dated 15.05.2009 in TA No.162/2009 pursuant to which the 1st spell from 9th October, 1998 to 28th October, 1998 has been regularized by the respondents, are equally applicable to other two spells also. It would be expedient to reiterate the said observations for the ready reference. It has thus been observed that She had already applied for leave on 9.10.1998 itself, her leave was not rejected, she has already been paid the leave salary for the period 9.10.1998 to 28.10.1998 and even in the attendance register the remark for the said period is leave applied for. In these circumstances, respondents are directed to consider whether the said period can at all be considered as unauthorized absence keeping in view the above contentions and the direction given by the Honble High Court of Delhi on 26.2.1999 to consider the application for leave and to pay her the salary due on or before 10.3.1999.
18. All these factors are equally present in the other two spells also which warrant the same treatment which was meted to 1st spell at the hands of the respondents for parity of reasons. If, in these facts and circumstances, the 1st spell cannot be viewed as unauthorized absence, the same is the case with regard to other two spells in the facts and circumstances remaining the same. The leave applied for the two spells ranging from 31st October, 1998 to 22nd November, 1998 and 28th November.1998 to 26th February, 1999 have been turned down vide Memorandum dated 15.12.2009 wherein the applicant was also called upon to show cause as to why the aforesaid period be not treated as dies-non. The proposal is a belated one for it is long after the applicant had already availed the leave applied for. If the respondents were not inclined to sanction the leave for exigencies of service, they should have taken decision expeditiously at the right time before the leave was availed of. The case of T.C.Kaushik (Supra), relied upon by the respondents counsel is distinguishable on facts. The nature of leave applied for is earned one which a Government servant can avail as a matter of right subject to the rider that it can be refused in exigency of service. Subject to this rider it is for the Government servant to avail such a leave according to his/her own needs and requirement. It is relevant to note in this regard that the leave accumulated can be encashed at the time of superannuation to the extent of 300 days. It has been the policy of the Government to encourage the employees to take leave regularly as can be seen from OM dated 25th January,1961 subsequently reiterated vide DOP &T OM dated 22/27th March,2001 as reported in Rule 7 of CCS (Leave) Rules, of Swamys Compilation of F.R. & S.R.-Part III which reads as follows:-
The Government have had under consideration the recommendation made by the Second Pay Commission that the Heads of Departments, Offices, etc, should plan their work in such a way as to permit Government servants to take a certain amount of leave annually and a longer period after some years or according to any special necessity.
Leave cannot be claimed as of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. These provisions have been made in the rules because it is not always possible to let all who want leave at a particular time to have it at that time and there is a limit beyond which depletion of staff cannot be permitted without dislocating the working of an establishment. These provisions are not intended to be used as in effect to abridge the leave entitlement of the staff. Indeed it is desirable in the interest of efficiency of the public service that Government servants take leave at suitable intervals and return to work keen and refreshed.
The leave sanctioning authority may, therefore, encourage Government servants to take leave regularly, preferably annually. In cases where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority should draw up phased programme for the grant of leave to the applicants by turns with due regard to the principles enunciated.
19. Since no exigency of service has been pointed out by the respondents, the leave applied for by the applicant ought not to have rejected.
20. Furthermore, the Order/Memorandum dated 21.01.2000 whereunder the period of two spells is treated as dies-non on the ground that the applicant has not offered any worthy reason, is cryptic and non-speaking one. The pleas taken by the applicant in her reply to show cause notice do not appear to have given due consideration. In her reply to show cause notice, she stated that she was not absent for she had applied for leave and she had sufficient leave to her credit. Furthermore, the Honble High Court in its Order dated 26.2.1999 directed the respondents to process the leave applications of the applicant and to pay the salary of the leave period on or before 10.03.1999. The action proposed by the respondents is thus in violation of the directions of the Honble High Court and yet the respondents claimed that the applicant has not adduced any worthy reason. The medical certificates too have escaped the respondents attention. The impugned Memorandum dated 21.01.2000 stands vitiated on account of non-consideration of the applicants plea referred to above and being non-speaking one.
21. We find force in the applicants contention that she applied for Earned leave while she was having sufficient leave to her credit under this head and her leave was not rejected by the respondents thereby allowing the applicant to remain on leave and never calling her back for joining her duties after canceling the leave cannot be viewed as unauthorized absence. Had the leave been refused and the applicant was called upon to join her duties and even then if she remained absent, then there could have been some force for holding this period as unauthorized absence. At best, the applicant can be said to have availed the leave without prior sanction. The fact remains that she applied for leave as she had been having sufficient leave to her credit and the respondents did not take decision on her leave application inspite of reminders in time are the mitigating factors which ought to have given due consideration while passing the impugned Order after about a year of the period in question.
22. The expression unauthorized absence needs to be construed in the context of FR 17-A in which it is used along with strike, combined action or in concerted manner or desertion of a post. The unauthorized absence envisaged under this Rule has to be of analogous nature otherwise use of expression unauthorised absence alone would have been sufficient rendering other specific categories which are mentioned in the Rule as redundant and superfluous.
23. In the facts and circumstances of the case and the reasons stated above, the impugned orders are quashed and set aside. The respondents are directed to refund the amount deducted from the applicants salary within two months from the date of receipt of a certified copy of this order. No order as to costs.
(Dr. Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /usha/