Central Administrative Tribunal - Delhi
Har Charan Singh vs Union Of India Through The General ... on 27 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.399 of 2011 MA No.378 of 2011 New Delhi this the 27th day of September, 2011 Honble Dr. Dharam Paul Sharma, Member (J) Har Charan Singh S/o Shri Surjan Singh, R/o G H-14, 953, Paschim Vihar, New Delhi. .... Applicant ( By Advocate Shri Yogesh Sharma ) VERSUS 1. Union of India through the General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Firozpur Division, Firozpur. .. Respondents ( By Advocate Shri Shailendra Tiwari ) O R D E R (Oral)
Feeling aggrieved of the respondents refusal to grant benefit of leave encashment to the applicant, the applicant has filed this Application under Section 19 of the Administrative Tribunals Act, 1985, praying for quashing of the impugned order dated 12.3.2010 read with order dated 26.12.2010 by which the applicant has been denied leave encashment due to non-availability of leave account.
2. The applicant retired on 30.6.1991. Vide their letter dated 31.3.1994, DPO, Firozpur, Northern Railway informed the applicant that his leave account for his active service period is neither traceable in the office nor in the office of LF/LDH and the applicant was, therefore, called upon to furnish detail of leave, absence, suspension etc. by way of an affidavit duly verified by LF/LDH, as the payment of settlement dues was held up on account of his leave account. The applicant informed the DMR Office vide his letter dated 11.4.1994 that he did not have any leave record with him. Thereupon the respondent no.2, called upon the applicant vide order dated 20.2.1995 to fill up the performa annexed with that order duly witnessed by two counterpart Railway Class III employees, who were still in service. The applicant submitted the duly filled in performa in the office of the respondent no.2. When the benefit sought was not released to the applicant, he made a complaint to Pension Adalat of respondents in October, 1998 but of no avail. The applicant sent a legal notice to the respondents seeking retiral benefits, including his leave encashment on 2.9.2000, which was replied to by the respondents on 1.5.2002 stating that there was no leave to his credit and therefore, he is not entitled to any leave encashment. The applicant vigorously pursued the matter with the respondents even through retired Railway Employees Association and made a number of representations. The respondents rejected the applicants claim vide their order dated 12.3.2010 rejecting the applicants claim for leave encashment on the ground of non-availability of leave account of the applicant. Feeling aggrieved, the applicant has filed the present Application challenging the impugned action of the respondents on the ground mentioned in para 5 of the Application. It has thus inter alia been contended that respondents cannot take advantage of their own wrong. Maintenance of leave account of the applicant was the responsibility of the respondents, if they failed to discharge their responsibility, the applicant cannot be deprived of his due entitlement. Furthermore, the respondents own Boards circular provides the mechanism to deal with the cases where relevant records are not traceable. The applicant has drawn my attention in this regard to the Boards circular dated 13.1.1993. The applicants grievance is that these instructions have not been duly complied with by the respondents while processing his claim for leave encashment. The learned counsel for the applicant at the hearing of the Application made strong plea that the respondents be directed to process the applicants claim in the manner as envisaged in the Railway Boards circulars, copies of which are annexed with the Application as Annexure A/12.
3. The respondents have filed their reply to the OA wherein they have opposed the applicants claim inter alia on the ground, namely, that the leave account of the applicant was not available in P-file of the applicant as well as in the record. It has accordingly been submitted that several letters were sent to LF/LDH for locating the leave account of the applicant because the leave account of the staff were maintained on the line. The line office of the respondents Department had informed vide their letter dated 08.03.2001 that no record of leave was available with them. It has accordingly been submitted that due to non-availability of leave account, payment of leave encashment could not be made to the applicant. However, at the hearing, the respondents counsel was unable to adduce any plausible explanation as to why the procedures prescribed under the Boards own circular in respect to cases where leave records are not available gave not been complied with in the instant case. The learned counsel for the respondents, however, referred to the fact that the applicant was placed under suspension, dismissed and re-instated and claimed 239 days of leave whereas leave could have been accumulated upto 180 days only. Nevertheless, he could not adduce any authority in support of his stand that leave encashment can be denied for the reason of non-availability of records without complying with the procedures prescribed by the respondents administratively in such matters.
4. I have given my careful consideration to the respective submissions made by both the parties. Suffice to say that the impugned orders of the respondents are not sustainable in law, as leave encashment benefits cannot be denied merely for the reason of non-availability of records, particularly, when the respondents themselves have provided the manner in which such cases are required to be dealt with. Reference in this regard may be made to the following circulars, copies of which are annexed with the OA, as at Annexure A/12,:-
The General Manager/Eastern Railway/Calcuttas letter No.E637/o/pt/II dated 5/17, Sept. 91 address to the Secretary (E) Railway Board, New Delhi.
Sub:- Recasting of leave account of the employees whose leave accounts are reported to be missing.
Ref:- 1 ) Boards letter No.E(G) 91 LE1/3 dt. 9.8.91.
2) Boards letter No.E(G)91 LE1/3 dt. 26.8.91.
The issue has been examined and this railway has the following recommendation to offer.
1. From the incremental stages since appointment it is to be ascertained whether there was only LWP or period (S) which do not qualify for earning leave viz. suspension, dies-non etc. If there is any period of LWP for more than 2 (two) days at a stretch, it should be assumed that the leave account bears no credit on that date.
2. The length of service after that date if there is no such LWP from the date of appointment, leave that would have been earned upto the date of missing of the leave record should be calculated. While calculating the leave earned, it should be seen that the balance of leave (Leave on Average Pay) on that day is not more than 180/240 days as the case may be.
3. To ascertain the quantum of leave taken, the following procedure should be adopted. Leave (LAP) taken during the 5 (five) years from the date the leave record is available should be totalled up and divided by 5 (five) to find out the yearly average of LAP taken. Applying this factor in the number of years of service upto the date for which the leave records are lost, the quantum of leave that might have been enjoyed can be worked out.
4. The difference of 2 and 3 above will give the balance of LAP upto the date the leave record is not available. Balance so arrived at should be recorded as balance brought forward from the date leave record is available in the leave account, which should be attested by one Accounts Officer and one personnel Officer/Leave Record maintaining officer. Thereafter, the leave upto the date of retirement or the date of such attestation, as the case may, should be updated. Rly. Bds letter No.E(G) 91 LE1-3 dated 13-1-93 Sub:- Recasting of leave accounts of the employees whose leave accounts reported to be missing.
During the meeting of DC under the JCM scheme held on 5/6.9.91, when the question about recasting of leave accounts of the Railway employees whose leave accounts are reported to be missing was raised, it was explained that the matter is being examined in consultation with the Railway Administrations.
The matter has accordingly been examined and it is considered that in cases of a part of leave account being lost, the balance brought forward, as indicated in the part leave account still available, should not be ignored but should be accepted as authentic and the cumulative balance worked out on the basis of the same. In other cases of missing leave accounts these can be reconstructed on the basis of leave account charts, pay bill ledgers, service register entries, office orders on leave the employees own statement, muster rolls, absentee statements etc. provisions contained in Rule 1019-1021 of MRPR are also relevant.
The practice being followed by Eastern Railway appears to be satisfactory. A copy of letter No.E637/o/Pt.II dated 5/17.9.91 is therefore enclosed for guidance. There is also a practice that leave at credit as on Ist Jan. and also as or Ist July is advised to all the employees which may also be followed.
Attention is also invited to the General instructions issued vide letter No.(G)3 LE1/3 dated 30-6-89. The Railway Ministry desire that these instructions be followed rigidly so that the difficulties being faced by the Railway employees particularly at the time of retirement are avoided. Railway Boards letter No.E (G) 96 LE 1-4, dated 31.12.96 Sub:- Systems improvement in maintenance of Leave Record.
The question of making systems improvements in the maintenance of leave records of staff to ensure cent-percent documentation of leave availed of in the office maintaining the leave records has been under consideration in Boards office for some time. This has been necessitated as a result of certain preventive checks conducted which have revealed that the various units of the Railways are not paying due attention to the proper accountal of the leave. The underlying reasons can be either purposeful surreptitious manipulation by the leave availing staff or general laxity on the part of the staff maintaining leave records or both.
2. To achieve the objective of a fool pre-of system while on one hand, the preventive checks and inspections which are required to be conducted will have to be intensified, the following the Divisional Railway Manager, N.Railway, Firozepur,procedure may be adopted with immediate effect.
2.1 In small Units shere leave records are maintained, the leave application should be put up to the senior supervisor/officer who is competent to sanction the leave along with the leave record duly posted, who after sanctioning the leave should also initial the leave record in token to having sanctioned the leave.
2.2 Wherever leave records are maintained centrally in the Divisional offices the following procedure should be adopted:-
(a) The field offices the supervisors of which are competent to sanction leave, should maintain a register called Leave Register. This register should be page-numbered and each employee working under him should be allotted a few pages. The registers should have columns similar to the leave record format. The credit balance of LAP and LHAP as on 1.1.1997 should be entered in this register. Thereafter, whenever any staff working under the senior supervisor/officer applies for leave, the details of the leave asked for should be entered in the register. The leave applied for should thereafter be deducted from the opening balance and the resultant balance shown in the relevant columns. The leave application, along with the register, should be put up to the senior supervisor/officer and they should sanction the leave only after signing the said register and making an entry in the leave application to that effect, indicating the serial number and the page number of the register.
(b) In the first week of every month, the entries in the register should be reconciled with the attendance register and then particulars of the leave availed of, along with the application sent to the Central Leave Section.
(c) The Central Leave Sanction should ensure that the leave records are posted for each unit within a period of one week from the date of receipt of the leave records mentioned at (b) above.
(d) Reconciliation of the register maintained in the filed office and the leave record maintained in the Central leave Section should be done once in two months to ensure that the records sent by the field units are posted correctly in the Leave Records.
2.3 (i) Branch Officers, personal Officers, Supervisors and Welfare/Personnel Inspectors should conduct frequent checks, including surprise check to ensure that the above procedure is being followed and the leave record maintenance is not lagging behind and is maintained up to date. During Inspection of fields/subordinate offices, the attendance registers should also be invariably checked to see that no blanks are left in the same and that the supervisor/officer-in-charge has indicated the number of total staff, number of staff on tour, number of staff on rest, number of staff on leave, number of staff absent, number of staff present, before putting his initials every day.
(ii) Accounts inspections should be done as per extent instructions, when leave records should be checked with the salary bills to ensure that there is no discrepancy between the absentee statement sent along with the salary bills and the postings in the leave records/register.
2.4 Any laxity in following the above procedure should be viewed seriously and deterrent action should be taken against the staff found responsible.
3. The possibility of computerizing the leave records and indicating the credit balance of LAP and LHAP up to the actual attendance period of the wage period of the staff concerned in the pay slip may also be explored. For this purpose, detailed foolproof procedures with sufficient checks and balances should be laid down by CPO in consultation with the FA&CAP which should ensure that there are no discrepancies between the credit balance shown in the pay slips, the registers maintained in the field offices and the leave records.
Advance action as required may be taken so that system indicated under para 2 above is introduced w.e.f. 1.1.1997. Action taken to computarise the leave records as indicated in para 3 may also be advised to Railway Board.
5. In view of the aforesaid instructions of the respondents, it is expected that respondents should have recasted the leave accounts of the applicant whose leave accounts are reported to be missing in the manner as prescribed in the aforesaid instructions. It is not open to the respondents to deny the benefit of leave encashment to the applicant without complying with the directions contained in the aforesaid Boards circulars in respect of re-casting of leave accounts of the employees whose leave accounts are reported to be missing.
6. In these premises, the impugned order is quashed and the matter is remitted back to the respondents to take further action in terms of Boards circulars referred to above and inform the applicant of their finding/decision to the applicant through a reasoned and speaking order within a period of three months from the date of receipt of a certified copy of this order.
7. The Original Application is disposed of in above terms. No order as to cost.
(Dr. Dharam Paul Sharma) Member (J) /ravi/