Central Administrative Tribunal - Mumbai
Ganesh Shankarrao Mhalankar vs Board Of Apprenticeship Training on 16 October, 2024
1 OA No. 432/2023
Central Administrative Tribunal
Mumbai Bench, Mumbai
OA No.432/2023
Dated this Wednesday, the 16th day of October, 2024
Coram : Hon'ble Mr. Justice M.G. Sewlikar, Member (J)
Ganesh Shankarrao Mhalankar, aged 46 years, serving as
Assistant Director of Training in Board of Apprenticeship
Training (Western Region), NSTI Campus, V.N. Purav Marg,
Sion-Chunabhatti Road, Mumbai. Pin Code 400 022
(Maharashtra) and residing at Flat No. 20, Fifth Floor, B
Wing, Shubham C.H.S, CTS No. 599 & 600, Rasta Peth,
Pune. Pin Code 411 011 (Maharashtra).
-Applicant
(By Advocate: Mr. R G Walia)
Versus
1. Board of Apprenticeship Training (Western Region),
Mumbai, An autonomous organization of Ministry of
Education, Department of Higher Education, Government
of India, NSTI Campus, V.N. Purav Marg, Sion-Chunabhatti
Road, Sion, Mumbai 400022 through Chairman;
2. Pramod Narayanrao Jumle, Director of Training,
Board of Apprenticeship Training (Western Region), NSTI
Campus, V. N. Purav Marg, Sion-Chunabhatti Road, Sion,
Mumbai 400022;
3. N. N. Wadode, Deputy Director of Training, Board of
Apprenticeship Training (Western Region), NSTI Campus,
V. N. Purav Marg, Sion-Chunabhatti Road, Sion, Mumbai
400022;
4. P. K. Saha, Administrative cum Accounts Officer,
Board of Apprenticeship Training (Western Region), NSTI
Campus, V. N. Purav Marg, Sion-Chunabhatti Road, Sion,
Mumbai 400022;
2 OA No. 432/2023
5. M. S. Pawar, Office Superintendent, Board of
Apprenticeship Training (Western Region), NSTI Campus,
V. N. Purav Marg, Sion-Chunabhatti Road, Sion, Mumbai
400022;
6. S. P. Pande, Junior Accountant, Board of
Apprenticeship Training (Western Region), NSTI Campus,
V. N. Purav Marg, Sion-Chunabhatti Road, Sion, Mumbai
400022;
7. Union of India through Secretary (Higher Education),
Department of Higher Education, Ministry of Education,
Government of India, 127-C, Shastri Bhawan, New Delhi-
11001;
8. Director General of Audit (Central), Indian Audit and
Accounts Department, C-25, Audit Bhavan, Bandra- Kurla
Complex, Bandra (East), Mumbai - 400051 (Deleted as per
Order dated 12th December, 2023)
9. Chief Election Commissioner, Election Commission of
India, Nirchavan Sadan, Ashoka Road, New Delhi 110001;
10. District Collector and District Election Officer,
Mumbai Suburban District, Collector Office Mumbai
Suburban District, 9th Floor, Administrative Building, Near
Chetna College, Government Colony, Bandra (East),
Mumbai- 400 051.
11. Chief Electoral Officer, Maharashtra General
Administration Department, 6 th Floor, Annex Building,
Madam Cama Marg, Hutatma Rajguru Chowk, Mantralaya,
Mumbai- 400 032.
- Respondents
(By Advocate: Mr. R R Shetty, learned senior counsel
a/w Mr. Sachin Patil)
3 OA No. 432/2023
ORAL ORDER
By Justice M.G. Sewlikar, Member (J) This is an application under Section 19 of the Administrative Tribunals Act, 1985 seeking the relief that 22nd October, 2019 be treated as a duty period and the salary deducted be paid to the applicant.
2. Facts leading to this application are that the applicant is working in Board of Apprenticeship Training (BoAT). State Assembly Elections were declared in the month of October, 2019. Polling day was 21st October, 2019. Applicant was appointed on election duty as Presiding Officer on 20th October, 2019 vide Order dated 23rd September, 2019 (Annexure- Exhibit A). Vide Communication dated 06th October, 2019, the applicant was to report for election duty on 20th October, 2019 at 8:00 AM. The Polling Station was at Khar (West), Mumbai- 400 052. The applicant accordingly, reported for duty on 20th October, 2019. He performed the election duty. As per communication dated 06th October, 2019, following day of the poll was to be treated as election duty. Therefore, the applicant did not join the duties in the Office of BoAT on 4 OA No. 432/2023 22nd October, 2019. The respondents marked the applicant absent on 22nd October, 2019. The applicant made representation mentioning therein that as per Instruction SI No. 32 dated 15th November, 1994 (Annexure- Exhibit C) read with Instruction dated 21st October, 2019 (Annexure- Exhibit D) of District Collector and District Election Officer, Mumbai Suburban District, the day following the poll was to be treated as an election duty. This explanation did not find favour with the respondents and they turned down the representation of the applicant. Consequently, because of marking of applicant as absent, his salary for 22nd October, 2019 was deducted from his monthly salary. This order is impugned in this OA.
3. Respondents filed the reply. They contend that the applicant did not join duty on 22nd October, 2019. He attended the office on 23rd October, 2019 without producing his relieving order as issued by the electoral authority. The Order dated 21st October, 2019 is conditional. It is applicable to only those constituencies in which more time will be required for travelling back to headquarters. They contend that the applicant who is the 5 OA No. 432/2023 resident of Shahapur had attended election duty on 21st October, 2019 which was treated as a regular duty. At the end of the day, he would ordinarily reach his residence, hence the next day cannot be treated as election duty. The applicant was appointed as Presiding Officer in the constituency in which the headquarters of BoAT is located. Therefore, it was possible for the applicant to come back and join duties on 22nd October, 2019 that is why the applicant has been shown as absent on that day i.e. 22nd October, 2019. They also contend that the applicant filed reply of Under Secretary and CPIO of Election Commission of India in which it is stated that the next day of poll will not be treated as holiday for the employees who performed the election duty. This letter makes it amply clear that 22nd October, 2019 was not to be treated as election duty and, therefore, the applicant ought to have remained present on 22nd October, 2019.
4. I have heard learned counsel for the applicant and learned senior counsel for the respondents.
5. Learned counsel for the applicant submits that vide Order of District Collector and District Election Officer 6 OA No. 432/2023 dated 21st October, 2019, it is clear that 22nd October, 2019 was to be treated as election duty. He invites my attention to the Instruction SI No. 32 issued by Election Commission in which it is stated that the day following the date of poll or re-poll shall be treated as election duty. In these circumstances, the applicant did not join the duties on 22nd October, 2019. He submits that the applicant was made aware that he would be required to attend the duty on 22 nd October, 2019, if required and he should be in readiness to attend the duty. He further submits that the applicant was relieved at 2:00 AM on 22nd October, 2019. Having regard to this, learned counsel for the applicant urges that 22nd October, 2019 was to be treated as election duty. Therefore, the respondents should not have treated the day, 22nd October, 2019 as absent from duty.
6. Learned senior counsel for the respondents, Mr. R R Shetty submits that in the letter of Election Commission dated 29th May, 2019 (Learned senior counsel for the respondents submits that the date should have been 29th May, 2020), it is stated that the next day of poll will not be treated as holiday for the employees who performed the 7 OA No. 432/2023 election duty. He submits that the applicant did not produce the certificate from the Election Commission indicating the date and time at which he was relieved. Therefore, the respondents were right in marking the applicant 'absent' on 22nd October, 2019. He submits that the applicant is the resident of Shahapur and the Office of BoAT is located in Sion. The election duty was at Khar. The distance between Khar and Sion is not more than 5 kms. The applicant travels daily from Shahapur to Sion. Therefore, it was not difficult for the applicant to attend the duty on 22nd October, 2019. The respondents were, therefore, justified in marking the applicant as absent on 22nd October, 2019. He submits that the respondents gave uniform treatment to all those employees who had attended the election duty and they were marked as absent. All the other employees had given leave application for 22nd October, 2019 except the applicant. He submits that no discriminatory treatment was given to the applicant.
7. I have given thoughtful consideration to the submissions made by the learned counsel and senior counsel for the respective parties.
8 OA No. 432/2023
8. The short question involved in this OA is whether the day following the poll i.e. 22nd October, 2019 is to be treated as election duty. If the answer to this question is in affirmative, the OA will succeed and if the answer is in negative, the OA will fail.
9. The election Commission has issued Instruction SI No. 32. These instructions are of 15th November, 1994. Para 4, 5, 6 and 7 are relevant for our purpose and are quoted hereunder:-
"4. Instructions are also contained in Chapter XXI of "Handbook for Presiding Officers' that after the poll the Presiding Officer shall hand over to the officials in charge of the Collecting Centre, all polled ballot boxes, election papers and materials and shall obtain a receipt there of. It has also been clarified that only after the above items are checked by the Receiving Officials at the Collecting Centre in the presence of the Presiding Officers/Polling Officers these personnel will be relieved.
5. The time taken for reaching the Collecting Centre with the polled ballot boxes and other materials will differ from place to place depending upon the distance of the polling station from the Collecting Centre, terrain and facility for transport, etc.
6. After the deposit of sealed ballot boxes and other materials by the Presiding Officers/Polling Officers these personnel will have to be given reasonable period for travelling back to their destinations wherever they come from since the deposit of the ballot boxes often goes late into the night of the date of poll, wherever they are able to reach the Collection Centre the same night, for the polling personnel to reach their headquarters takes time.9 OA No. 432/2023
7. The Commission therefore, has directed that the day following the date of poll, and in the case of re- poll, the date following the date of re-poll, as the case may be, will also be treated as period of election duty and the polling personnel will not be required to report for duty in their normal place on such day For instance, if the date of poll is 15th December and the polled ballot boxes, etc., are reached at the receiving centre on 15th/16th December by the Presiding Officer/Polling officers, such officers will not be treated as absent from their normal duty if they do not report for their duty on 16th December, after completion of the election duty but report on 17th December, for their normal duties. In areas where the travelling time is longer, suitable allowance will be further made for this and the day following the date of deposit of polled material, etc, shall be treated as duty period."
10. These instructions make it amply clear that the day following the date of poll shall be treated as election duty. The Election Commission has given illustration also. As per that illustration, 16th December will be treated as election duty if the poll is conducted on 15th December. Therefore, there was no manner of doubt that election duty will continue on the following day of the poll. The same instructions were repeated by Collector and District Election Officer, Mumbai Suburban District on 21st October, 2019. I deem it fit to reproduce those instructions as under:-
"For, personnel working in Mumbai Suburban District are residents of Mumbai city, Thane, Palghar and Raigarh districts and on the poll day 21.10.2019 10 OA No. 432/2023 they get late reaching their homes or have to spend the next day also.
Directions have been given that in those constituencies in which more time will be required for travelling back to headquarters, the day following the date of deposit of election material should also be treated as period of general duty. Therefore, related Presiding Officers/Polling Officers should not be treated as absent from their normal duty on 22.10.2019.
After completion of the poll process the Presiding Officers/Polling Officers depositing materials shall be treated on election duty on 22.10.2019."
11. These instructions are in consonance with the instructions of Election Commission. These instructions make it amply clear that for residents of Mumbai city, Thane, Palghar and Raigarh districts, the day following the date of deposit of election material should also be treated as period of election duty and, therefore, the Presiding Officers / Polling Officers should not be treated as absent from their normal duty on 22nd October, 2019.
12. Despite these clear instructions having been given by the Election Commission and the Collector and District Election Officer, the respondents had the audacity to treat the day following the date of poll not to be an election duty. They have contended in the reply that the applicant commutes daily from Shahapur to Sion. They are relying on 11 OA No. 432/2023 the letter addressed to the applicant dated 29th May, 2019. The purport of the letter is as under:-
"Please refer to your online RTI Application Registeration No. 8537 dated 08.05.2019 on the above subject, received by the CPIO in the Commission on 14.05.2019. In this connection you may refer to the instructions issued by the Commission vide letter No. 576/11/94/JS.II dated 15.11.1994 regarding period of duty of Presiding and Polling Officers in which it has been stated that the day following the date of poll and in the case of re-poll, the date following the date of re-poll, as the case may be, will also be treated as period of election duty and the polling personnel will not be required to report for duty in their normal place on such day. A copy of the same is enclosed herewith. However, the next day of poll will not be treated as holiday for the employees who performed the election duty."
(underlining is mine)
13. The purport of this letter is the same as is reflected in the Election Commission's Instruction SI No. 32 and the Letter of the Collector and District Election Officer dated 21st October, 2019. The respondents are laying emphasis on the underlined portion of the Letter dated 29th May, 2019 i.e. the next day of poll will not be treated as holiday for the employees who performed the election duty. The respondents are conveniently ignoring the earlier part of the letter and laying undue emphasis on the underlined portion. It only says that the next day of poll will not be 12 OA No. 432/2023 treated as holiday for the employees who performed the election duty. It does not say that the day following the date of poll shall not be treated as election duty. The respondents ought not to have considered this letter when there were clear instructions in SI 32 and letter dated 21st October, 2019 (Annexure-Exhibit D) from Collector and District Election Officer Mumbai Suburban District. They have even audacity to say that the applicant could have remained present on 22nd October, 2019 as the applicant regularly commutes from Shahapur to Sion. This approach of the respondents to say this is worth deprecating. Respondent No. 10 has also filed affidavit in which the stand of the applicant has been vindicated. Para 8 to 10 of the affidavit is relevant for the purpose of this OA. Para 8 to 10 are reproduced for facility of reference:-
"8. I say that, as per the Instruction letter, serial no.32 in accordance with the Election Commission's letter no.576/11/94, it clearly mentions that since the time taken for reaching the collecting centre with the polled ballot boxes and other materials shall differ from place to place depending upon the distance of the polling station from the collecting centre, terrain and facility of transport, etc. hence after the deposition of the sealed ballot boxes the presiding officers/polling officers will have to be given reasonable period for travelling back to their destinations. "The commission therefore had directed that, the day following the date of poll and in case of re-poll, the 13 OA No. 432/2023 date following the date of re-poll, whatever the case may be, shall be treated as a period of election duty and the polling personnel will not be required to report for duty in their normal place on such day. The presiding officer/polling officers shall not be treated as absent from their normal duty if they do not report for duty in their normal place"
9. I further state that, in accordance with the instructions of the Election Commission, this office of Respondent no.10 had also issued a letter on 21/10/2019. The copy of the said letter is annexed in the Petition as Exhibit D (Page no. 87) In the said letter it has been mentioned that, ...day following the date of deposit of election material should also be treated as a period of general duty and therefore the related presiding officers/polling officers should not be treated as absent from their normal duty on 22/10/2019.
10. I further submit that, in the above circumstances this office is also of the opinion that, "day following the date of deposit of election material should also be treated as a period of general duty of the Petitioner and therefore the related presiding officers/polling officers should not be treated as absent from their normal duty on 22/10/2019."
14. These paras clearly indicate that the 22nd October, 2019 ought to have been treated as election duty. In para 10, respondent no. 10 has specifically stated that the related presiding officers / polling officers should not be treated as absent from their normal duty on 22nd October, 2019. Despite this affidavit, the respondents continued with their recalcitrant stand.
15. The stand of the respondents, therefore, cannot be sustained. The application will have to be allowed. 14 OA No. 432/2023 Normally, cost on the respondents is not imposed when application is to be allowed. But this case is different. In this case, the respondents treated 22nd October, 2019 as a regular working day in violation of the Election Commission's Instructions and that on totally unsustainable reasons. Therefore, this is a fit case in which cost will have to be imposed on the respondents.
16. In view of the above, application is allowed with cost of Rs. 25,000/- to be paid to Chief Minister's Relief Fund, Maharashtra. The cost be recovered from the concerned officers.
17. The respondents shall treat 22nd October, 2019 as the election duty and the applicant be treated 'on duty' on 22nd October, 2019 and the deducted salary be paid to the applicant.
18. This exercise shall be done within a period of three weeks from the date of receipt of a certified copy of this order. Pending MAs, if any, stand disposed of.
(Justice M.G. Sewlikar) Member (J) 'nk'