Central Administrative Tribunal - Delhi
Naresh Kumar vs Govt. Of Nct Delhi on 1 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. 1145/2008 New Delhi this the Ist day of April, 2009 Honble Mr. Justice M. Ramachandran, Vice Chairman (J) Honble Mr. N.D. Dayal, Member (A) Naresh Kumar, S/o Shri Purshotam Dass, Laboratory Assistant, Govt. Sarvodaya Bal Vidyalaya, Nangloi, Delhi-110041. And R/o H.No.780/1/2, Near Takya Talab Jhor, Mundaka, Delhi. Applicant. (By Advocate Shri S.M. Garg) Versus 1. Govt. of NCT Delhi, through its Chief Secretary, Govt. Secretariat, Vikas Marg, Delhi. 2. The Director of Education, Govt. of NCT Delhi, Old Secretariat, Delhi. 3. The Deputy Director of Education, District South West `A, Directorate of Education, Govt. of NCT Delhi, Vasant Vihar, New Delhi. 4. The Administrative Officer, District South West `A, Directorate of Education, Govt. of NCT Delhi, Vasant Vihar, New Delhi. Respondents. (By Advocate Shri Rishi Prakash) O R D E R
Honble Mr. Justice M. Ramachandran, Vice Chairman (j).
A peculiar situation has arisen in this case for us to deal with. Perhaps, the matter should have been relegated to the concerned authorities for facilitating them to come up with further orders on the pending representations, but taking notice of the substantial justice that requires to be meted out and also taking notice of the possible delay such exercise might have resulted, we think it will be appropriate to give a quietus to the issue and the litigation closed.
2. The applicant was a Laboratory Assistant under the Government Sarvodaya Bal Vidyalaya, Nangloi, Delhi. He had absented himself on 23.02.1995 and this continued upto 17.01.1996. It is seen that his wife had deserted him and he himself was suffering from mental illness. When he returned with a medical certificate, on 18.01.1996, he had been readmitted to duty at Rajkiya Sarvodaya Bal Vidyalaya, Delhi Cantt. He attained superannuation on 31.05.2007. When pension orders were issued to him, it had been found that a lesser amount than he expected had been paid (see Ann. P-4). He had submitted a representation but that had been disposed of 08.06.2007 by Annexure P-1. It had been replied that the period from 23.02.1995 to 17.01.1996 had been treated as Dies-Non under Rule 25 of the CCS (Leave) Rules, 1972. The absence without sanction was to constitute an interruption in service for the purpose of pension and unless the Pension Disbursing Authority exercises his powers under Rule 27 of the CCS (Pension) Rules to treat the period as leave without allowances, the past service was to be treated as forfeited. The applicant thereupon had submitted a representation on 25.09.2007 highlighting his grievances and requesting for regularization of the break period. Counsel submitted that it has not been disposed of so far.
3. This circumstance had led him to file this OA.
4. By way of their counter reply, the respondents took a stand that the order was passed by them in consonance with the rules, and the applicant had been informed of the decision whereby the period was to be treated as Dies Non as early as on 04.01.2002 but this has not been subjected to challenge. Therefore, Mr. Rishi Prakash, counsel submits that by normal standard, the application is belated as what is attempted is to get round the issue by suppressing the laches.
5. However, the passionate plea of the applicant is that he had never been put to notice about the order dated 04.01.2002. In the rejoinder, a prayer was made for directing the respondents to produce documents to show that such order had been issued to him. But no materials have been produced to show that as a matter of fact, the order dated 04.01.2002 has been served on the applicant. Also taking note of attendant circumstances, we are constrained to hold that there is no delay as such. The respondents although had submitted that a representation dated 25.09.2007 is pending and no action has been taken thereof, and, therefore, O.A. is not to be entertained, we do not think at this stage the plea is to be seriously noticed.
6. We may in this context refer to the relevant rules. If it is a case of interruption in service, the past service gets forfeited unless it is a case of unauthorized leave or unauthorized absence in continuation of authorized leave; a case of suspension or a like situation. This appears to be a case of total unauthorized absence, and the Government of Indias Decisions as pertaining to Rule 27 authorizes the respondents to treat the period as if the entire past service stands forfeited. The question is whether the rigor of the rule could be applied in its full force in the present case because of the circumstances which have been highlighted.
7. The applicant admittedly had remained absent for a period over one year. But it is not in dispute that when he reported himself for work with a medical certificate, he had been admitted to duty. Of course, it was within the power of the Department or rather their obligation to get an explanation about the unauthorized absence, instead of accepting the medical certificate dutifully. But the authorities have not followed such a course, and had held out that the absence was condoned, since admittedly no disciplinary action has been taken at all.
8. The Government of Indias Decision referred to in the impugned order, namely, as one coming under Rule 25 of the Leave Rules, provides that entire past service is to stand forfeited unless the Pension Sanctioning Authority exercises its powers under Rule 27 of the CCS (Pension) Rules to treat the period as leave without allowances. But the Government of Indias Decision also refers to other contingencies. It has been clarified that there is power in the disciplinary authority to take appropriate disciplinary action, for the misconduct of unauthorized absence from duty or overstay of leave even for one day, if the facts and circumstances warrant such action.
9. The instructions, as above when it refers to the impact of facts and circumstances of the case, might be crucial. This was a case where no action at all has been taken and it is to be presumed that taking notice of the peculiar facts of the case, namely, that the certificates produced by the applicant indicate that he had been suffering from mental disturbances, the competent authority had come to a decision that no disciplinary proceedings were warranted. It is also relevant that after permitting him to join duty in January, 1996, even, according to the respondents, some orders have been passed only in the year 2002. The long passage of time has not been attempted to be explained. The circumstances that it has not been shown as served on the applicant, may even lead to a conclusion that such a document might have come into existence on some unidentified date. But so long as such order was not served on the applicant, it could not have been considered as binding him, especially taking notice of the situation that he had been permitted to join duty and was continuously working thereafter. Therefore, the strictness of the rules, namely, that the period of absence had not been duly condoned by the competent authority and, therefore, it has to be treated as Dies-Non may not be justifiable to be applied taking notice of the special facts of the case. In the facts of the case, we are of the opinion that this is a case where it is to be deemed that the absence had been condoned, and the period is to be equated as the period spent on extraordinary leave. If that be the case, the concerned period is not to be treated as Dies Non. Resultantly, there is not to be imposed any break, to curtail or bifurcate the service of the applicant.
10. The impugned orders are, therefore, set aside. We direct the competent authority to pass orders for re-fixing the pension of the applicant, on an assumption that there is no break in service. However, from the total service, the period from 23.02.1995 to 17.01.1996 should be deducted. It should be ensured that monetary benefits that may arise because of this declaration and consequential orders are paid to the applicant within three months from today. No costs.
(N.D. Dayal) (M. Ramachandran) Member (A) Vice Chairman (J) `SRD