Central Administrative Tribunal - Delhi
Hon Ble Shri V.N.Gaur vs In View Of The Above And In Exercise Of The ... on 4 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO. 765 OF 2012 New Delhi, this the 4th day of March, 2014 CORAM: HONBLE SHRI V.N.GAUR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER Sohan Lal S/o Sh.Mawasi, Aged about 50 years, R/o A-7/94, Sector 17, Rohini, Delhi 110085 . Applicant (By Advocate: Shri M.K.Bhardwaj) Vrs. 1. Kendriya Vidyalaya Sangathan, 18, Institutional Area, Saheed Jeet Singh Marg, New Delhi 110016 Through its Commissioner 2. The Assistant Commissioner, Kendriya Vidyalaya Sangathan, (Delhi Region), JNU Campus, New Mehrauli Road, New Delhi 110067 3. The Principal, Kendriya Vidyalaya, A-2, Keshav Puram, Delhi 110035 . Respondents (By Advocate: Shri S.Rajappa) . ORDER Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following relief:
(i) To allow the application and quash the impugned order dated 15/19.5.2009 (Annexure A-1) and direct the respondents to treat the period from 1.8.2001 to 27.4.2006 as qualifying service for the purpose of pension and allow all consequential benefits including continuity in service;
Any other or further relief which this Honble Tribunal may deem fit in the facts and circumstances of the case may also kindly be granted in favour of the applicant and against the respondents.
Cost of the proceeding may also be awarded in favour of the applicant.
2. Shorn of unnecessary details, the applicants case, as projected in the Original Application, runs thus: The applicant was appointed as a Group D employee by the respondent-Kendriya Vidyalaya Sangathan (hereinafter referred to as K.V.S.) against a temporary post with effect from 23.4.1986. He was regularized as a Group D employee w.e.f. 23.4.1988. While working as such in Kendriya Vidyalaya, Rohini, Delhi, he remained on leave from April 2001 till 7.9.2001. On 1.9.2001 he fell seriously ill at his native place and was under medical treatment till 30.10.2001. He sent application on 9.9.2001 for extension of leave by two more months. As he could not recover from illness, the applicant on or about 12.11.2001 made a request to respondent no.5 for granting him more leave. He was declared fit to join duties w.e.f. 23.12.2001. He reported for duty with medical fitness certificate on 24.12.2001, but the Principal did not allow him to join. On 29.12.2001, a Memorandum was issued by the Principal removing him from service under Article 81(D) of the Education Code of K.V.S, vide Annexure A-5. His appeal dated 5.3.2002 made against the Memorandum dated 29.12.2001 was rejected by the appellate authority, vide its order dated 2.8.2002. Before his revision petition dated 16.8.2002 came to be disposed by the concerned authority, the applicant approached this Tribunal in OA No.195 of 2003. The Tribunal disposed of the said O.A. by order dated 24.1.2003 directing the respondents to decide his pending revision petition. On dismissal of his revision petition, the applicant once again approached this Tribunal in OA No.2388 of 2003. The Tribunal, by order dated 18.1.2006 (Annexure A-7) set aside the appellate as well as the revisional orders and remanded the matter back to the appellate authority to consider, in true perspective as per Article 81(D), the appeal and contents thereof with specific reference to the proportionality of punishment and medical record of the applicant. The appellate authority, vide its order dated 3/21.4.2006 (Annexure A-8), taking a sympathetic view, allowed the appeal and reinstated the applicant in the services with immediate effect. The applicant on his such reinstatement joined the service on 28.4.2006. As regards the intervening period from 1.8.2001 to 27.4.2006, i.e., from the date of removal to the date of joining, the appellate authority, by its order dated 4.7.2007(Annexure A-2), decided that the said period for which no leave was sanctioned and during which the applicant had absented himself from duty willfully would be treated as dies non for all purposes. Being aggrieved thereby, the applicant, for the third time, approached this Tribunal in OA No.1068 of 2008. The Tribunal, by order dated 7.1.2009, disposed of the said O.A. with a direction to the respondents to reconsider the said intervening period treating as qualifying service only for pension and an order to this effect be passed. The appellate authority, by its order dated 19.5.2009 (Annexure A-1) rejected the claim of the applicant to treat the said intervening period as qualifying for the purpose of pension.
2.1 Thereafter, the applicant filed MA No.2707 of 2010 purportedly under Section 27 of the Administrative Tribunals Act, 1985 read with Rule 24 of the Central Administrative Tribunal (Procedure)Rules, 1987, questioning the said order dated 15/19.5.2009. The Tribunal, by order dated 13.10.2011, dismissed the said MA. However, the Tribunal granted liberty to the applicant to challenge the aforesaid order dated 15/19.5.2009 in appropriate proceedings.
2.2 Hence, the applicant, impugning the said order dated 15/19.5.2009,has filed the present Original Application on 5.3.2012.
2.3 In the Original Application, the applicant has mainly contended that the respondents have acted contrary to the law laid down by the Honble Apex Court in Central Bank of India v. Nripendra Nath Sarkar, (2008) 11 SCC 249, in as much as they have not complied with the direction of the Tribunal contained in the order dated 7.1.2009; that the impugned order does not conform to the requirements of FR 54(4) or FR 54(5); and that he having been prevented from joining his duties on 24.12.2001, the respondents should have treated the intervening period from 1.8.2001 to 27.4.2006 as qualifying service for pension.
3. In the counter reply, the respondents have highlighted the aims and objectives of incorporating Article 81(D) in the Education Code for K.V.S. It is stated that the K.V.S. had been facing the problem of unauthorized absence of teachers/employees and consequential loss of teaching in the Vidyalayas. The Board of Governors of K.V.S. appreciated the severity of the problem of unauthorized absence of teachers/employees and felt that such absence was one of the primary causes of indiscipline and deteriorating academic standards in Vidyalays. The Board of Governors of KVS also felt that normal procedures/rules as available under the CCS (CCA) Rules, 1965 were cumbersome, dilatory and not sufficient to address the magnitude of the aforesaid problem in the Vidyalayas. The Board further felt that continued and uninterrupted availability of teachers/employees was a prerequisite to inspire confidence of the students and parents in the systems of K.Vs. In view of the above and in exercise of the powers conferred under Regulation 22 of the Memorandum of Rules of the KVS, the Board of Governors framed and inserted Article 81(D) Voluntary abandonment of service in the Education Code for K.V.S. 3.1 It is stated by the respondents that the applicant was sanctioned EL/EOL up to 31.7.2001 in different spells. His application for leave on medical ground up to 7.9.2001 was not granted in the absence of medical certificate and he was directed to report for duty before 22.9.2001, vide office order dated 19.9.2001. The order was sent to his permanent address as well as local address. The applicant continued to remain absent from duty unauthorisedly and failed to comply with the written direction of the Principal. He also did not submit any reply and therefore, the appointing authority issued a show-cause notice dated 25.10.2001 under the provisions of Article 81(D) of the Education Code of K.V.S. as he was deemed to have voluntarily abandoned his service and thereby provisionally lost lien on his post. He was directed to show cause as to why the provisional loss of lien should not be confirmed. The said notice was also sent to his permanent as well as local address. The applicant submitted his reply to the show cause notice vide representation dated 24.12.2001 and requested to permit him to join his duties. Since the justification put forward by the applicant for his unauthorized absence from duty was not convincing, the appointing authority passed an order confirming the loss of lien held by him on the post under the provisions of Article 81(D) of the Education Code of K.V.S., vide memorandum dated 29.12.2001. The Tribunal, by its order dated 7.1.2009 passed in OA No.1068 of 2008, directed the respondents to reconsider the matter. In the said order, there was no specific direction to treat the intervening period from 1.8.2001 to 27.4.2007 as qualifying service only for pension. Since under Rule 27 of the CCS (Pension) Rules, 1972 the dies non period does not qualify for pension, the appellate authority rejected the applicants claim. In view of this, the respondents have prayed for dismissal of the O.A.
4. In the rejoinder reply to the respondents counter reply, the applicant has not averred any new fact or point, save and except denying in general terms the averments contained in the counter reply. He has also filed some additional documents on 18.1.2013 in support of his averments made in the O.A as well as rejoinder reply.
5. We have perused the pleadings and heard the learned counsel appearing for the parties.
6. Shri M.K.Bhardwaj, the learned counsel appearing for the applicant submitted that since the applicant was reinstated in service as a result of appeal, the appellate authority should have passed specific order under FR 54(1) as to whether or not the intervening period shall be treated as on duty. Instead of passing specific order under FR 54(1), the appellate authority, in the first instance, treated the intervening period as dies non for all purposes. Though the Tribunal, by its order dated 7.1.2009(ibid), directed the appellate authority to reconsider the intervening period as qualifying service only for pension, yet the appellate authority rejected the claim of the applicant by referring to Rule 27 of the CCS (Pension) Rules, which is not applicable to the case of the applicant. The learned counsel also submitted that the Tribunal, by its order dated 18.1.2006 passed in OA No.2388 of 2003, observing that the applicant was not a willful absentee, remanded the matter back to the appellate authority. Keeping in view the observations and direction of the Tribunal, the provisions of FR 54(1), and the admitted fact that the applicant had reported for duties on 24.12.2001 but had been disallowed by the respondents to join his duties, the appellate authority ought to have treated the intervening period from 1.8.2001 to 27.4.2006 as qualifying service only for pension.
7. Shri S.Rajappa, the learned counsel appearing for the respondents, on the other hand, submitted that the applicant having not challenged the order treating the intervening period from 1.8.2001 to 27.4.2006 as dies non, his claim for treating the said period as qualifying service for pension cannot be acceded to in view of the provisions contained in Rule 27 of the CCS (Pension) Rules. Besides, the learned counsel submitted that FR 54(5) is applicable to the applicants case and in terms thereof, the said intervening period cannot also be treated as qualifying service only for pension in as much as the applicant was not fully exonerated of the charge of his having willfully and unauthorisedly remained absent from duties and that the appellate authority, taking a lenient view, only reinstated him in service. It is also submitted by the learned counsel that in compliance with the direction of the Tribunal, the appellate authority reconsidered the claim of the applicant and rejected the same after taking into consideration all the relevant factors and the provisions of Rule 27 of the CCS (Pension) Rules, and therefore, the impugned order remains unassailable.
8. In order to appreciate the rival contentions raised by the learned counsel for the parties, it would be appropriate to refer to Rule 27 of the CCS (Pension) Rules, which is quoted below:
27. Effect of interruption in service (1) An interruption in the service of a Government servant entails forfeiture of his past service, except in the following cases :-
(a) authorized leave of absence ;
(b) unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively ;
(c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension ;
(d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest ;
(e) joining time while on transfer from one post to another.
(2) Notwithstanding anything contained in sub-rule (1), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave. 8.1 It would also be appropriate to refer to FR 54, which is quoted below:
F.R 54 (1) When a Government servant who has been dismissed, removed, or compulsorily retired, is reinstated as a result of appeal, review, or would have been so reinstated but for his retirement on superannuation, while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order:-
regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty including the period of suspension preceding his dismissal, removal or compulsory retirement, as the case may be, and whether or not the said period shall be treated as a period spent on duty.
(2) Where the authority competent to order reinstatement is of the opinion that the Government servant, who had been dismissed, removed or compulsorily retired has been fully exonerated, subject to the provisions of sub-rule (6), be paid full pay and allowances to which he would have been entitled, had he not been dismissed, removed, or compulsorily retired, or suspended prior to such dismissal, removal or compulsory retirement, as the case may be:
Provided that where such authority is of opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representations within 60 days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall, subject to the provisions of sub-rule (7), be paid for the period of such delay, only such amount not being the whole of such pay and allowances as it may determine.
(3) In a case falling under sub-rule (2), the period of absence from duty including the period of suspension preceding dismissal, removal or compulsory retirement, as the case may be, shall be treated as a period spent on duty for all purposes.
(4) In the cases other than those covered by sub-rule (2) including the cases where the order of dismissal, removal or compulsory retirement from service is set aside by the Appellate, or Reviewing Authority, solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution and no further enquiry is proposed to be held, the Government servant shall, subject to the provision of sub-rules (6) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed, or compulsorily retired, or suspended prior to such dismissal, removal, or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice.
Provided that any payment under this sub-rule to a Government servant other than a Government servant who is governed by the provisions of the Payment of Wages Act 1936 (4) of 1936 shall be restricted to a period of three years immediately preceding the date on which orders for re-instatement of such Government servant are passed by the Appellate Authority or Reviewing Authority, of immediately preceding the date of retirement on superannuation of such Government servant, as the case may be.
(5) In a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal. or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose:
Provided that if the Government servant so desires, such authority may direct that the period of absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be, shall be converted into leave of any kind due and admissible to the Government servant.
Note.- The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary to the grant of-
(a) extraordinary leave in excess of three months in the case of temporary Government servant, and
(b) leave of any kind in excess of five years in the case of permanent or quasi-permanent Government servant.
(6) The payment of allowances under sub-rule (2) or sub-rule (4) shall be subject to all other conditions under which such allowances are admissible.
(7)The amount determined under the proviso to sub-rule (2) or under sub-rule (4) shall not be less than the subsistence allowance and other allowances admissible under rule 53.
(8) Any payment made under this rule to a Government servant on his re-instatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of removal, dismissal or compulsory retirement, as the case may be, and the date of re-instatement. Where the emoluments admissible under the rule are equal to or less than the emoluments earned during the employment elsewhere, nothing shall be paid to the Government servant.
9. A plain reading of Rule 27 of the CCS (Pension) Rules makes it clear that the provisions contained therein speak about the interruption of service of a Government servant which entails forfeiture of his past service, and the exceptions under which interruption of service of a Government does not entail forfeiture of his past service. Those exceptions are: (a) authorized leave of absence; (b) unauthorized absence in continuation of authorized leave of absence so long as the post of absentee is not filled substantively; (c) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the Government servant dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension; (d) transfer to non-qualifying service in an establishment under the control of the Government if such transfer has been ordered by a competent authority in the public interest; and (e) joining time while on transfer from one post to another. Thus, it is inconceivable that Rule 27(ibid) contains any provision under which the competent authority has to take a decision while considering the claim of an employee, like the applicant, for treating the intervening period from the date of removal to the date of reinstatement as qualifying service only for pension. We, therefore, find force in the submission of the learned counsel for the applicant that Rule 27 of the CCS (Pension) Rules is not applicable to the applicants case.
10. It is next to be seen as to whether F.R 54 (1) or F.R.54(5) is applicable to the case of the applicant. Under FR 54(1), in a case where a Government servant who has been dismissed, removed, or compulsorily retired, is reinstated as a result of appeal review, or would have been so reinstated but for his retirement on superannuation, while under suspension or not, the authority competent to order reinstatement shall consider and make a specific order, inter alia, as to whether or not the said period shall be treated as a period spent on duty. Under FR 54(4), in a case where the order of dismissal, removal, or compulsory retirement from service, is set aside by the Appellate or Reviewing Authority solely on the ground of non-compliance with the requirements of Clause (2) of Article 311 of the Constitution and no further enquiry is proposed to be held, the Government servant shall, subject to the provisions of sub-rules (6) and (7), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled, had he not been dismissed, removed, or compulsorily retired, or suspended prior to such dismissal, removal, or compulsory retirement, as the case may be, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within such period which in no case shall exceed sixty days from the date on which the notice has been served as may be specified in the notice. Under FR 54(5), in a case falling under sub-rule (4), the period of absence from duty including the period of suspension preceding his dismissal, removal, or compulsory retirement, as the case may be, shall not be treated as a period spent on duty, unless the competent authority specifically directs that it shall be so treated for any specified purpose.
11. In the case at hand, the competent authority rejected the claim of the applicant for treating the intervening period as qualifying service only for pension. FR 54(1) mandates that the competent authority to order reinstatement shall make specific order as to whether or not the intervening period from the date of dismissal or removal, etc., to the date of reinstatement, shall be treated as a period spent on duty. Thus, under FR 54(1) there appears to be no scope for the competent authority to consider the claim of a Government servant to treat the said intervening period as qualifying service only for pension. Therefore, the contention of the applicant that FR 54(1) is applicable to the case of the applicant is untenable.
12. The other aspect of the point is as to whether or not FR 54(5) is applicable to the case of the applicant. Admittedly, in the instant case, on the matter being remanded back, the appellate authority reconsidered the appeal filed by the applicant against removal from service. The appellate authority did not exonerate the applicant of the charge of willful or unauthorized absence from duty, nor did it find that the removal order passed by the disciplinary authority was unsustainable. The appellate authority, taking a lenient view, only directed reinstatement of the applicant with immediate effect. Therefore, it cannot be held that the applicants case is covered under FR 54(4). Consequently, FR 54(5) cannot be said to be strictly applicable to the case of the applicant. But it appears therefrom that the competent authority can treat the intervening period for any specified purpose. In the instant case, the appellate authority passed a specific order treating the intervening period as dies non. When the Tribunal directed the appellate authority to reconsider the intervening period as qualifying service only for pension, the appellate authority reconsidered the question and rejected the applicants claim by passing a speaking order.
13. The next submission of the learned counsel for the applicant is that in terms of the order dated 7.1.2009 passed by the Tribunal in OA No. 1068 of 2008, the appellate authority was required to treat the intervening period as qualifying service for pension by passing necessary order. For considering this submission of the learned counsel, it would be apt to quote the order dated 7.1.2009 passed by the Tribunal as follows:
Heard the counsel.
2. Though in pursuance of our erstwhile directions in OA No.2388/2003 dated 18.1.2006, applicant was reinstated in service, however, the absence period from 1.8.2001 to 2.4.2006 has been treated as dies non.
3. Though, we deprecate the conduct of the applicant of his frequent absence but the same is not subject matter before us, so we restrain from recording any finding on it.
4. We dispose of the OA with a direction to the respondents to reconsider this period treating as qualifying service only for pension and an order to this effect be passed within three months from the date of receipt of a copy of this order. No costs. A perusal of the above order does not reveal that this Tribunal had given a direction to the respondents to treat the intervening period as qualifying service for pension by passing necessary order. There was also no observation therein about any shortcoming, or lacunae, or extenuating circumstance in the order passed by the appellate authority. Rather, in the said order dated 7.1.2009 (ibid) the Tribunal had deprecated the conduct of the applicant of his frequent absence. In Central Bank of India and another v. Nripendra Nath Sarkar, (2008)11 SCC 249, the Honble Supreme Court found that the Honble Single Judge of the High Court had directed the appellate authority to go into the question afresh in the light of the observations made by His Lordship and decide the appeal after granting personal hearing to the respondent(delinquent employee). Some of the important observations of the Honble Single Judge were that the original charge of defalcation of Rs.36,990.53 had been whittled down to Rs.9662.46 and thus there had been a dilution of the charge to a substantial extent; and that it might be possible that if there was a third enquiry formed the amount might have been lesser which would lead to the conclusion that there was a likelihood of faulty accounting system. Despite the order of the Honble Single Judge, the appellate authority did not decide the case according to the observations of the Honble Single Judge. The Honble Apex Court, in paragraphs 13, 14 and 15, held as follows:
13. We have carefully perused the entire record of the case and all the proceedings before various courts. The Division Bench in the impugned judgment while dismissing the appeal gave four weeks time to the appellate authority to decide the appeal in accordance with the observations made by the learned Single Judge in the order dated 24.3.2006 and the observations made by the Division Bench.
14. In the facts and circumstances of this case, the observations made in the impugned judgment are absolutely just and fair. The appellate authority is directed to carry out the directions given by the learned Single Judge and the Division Bench in its true spirits. We find no infirmity in the directions given by the Division Bench in the impugned judgment.
15. The appellant instead of approaching this Court ought to have complied with the directions of the Division Bench. This appeal being devoid of any merit is dismissed with costs. In the case at hand, the Tribunal had not issued any such positive direction, as noted earlier. Therefore, the decision of the Honble Apex Court in Central Bank of India v. Nripendra Nath Sarkar, (2008) 11 SCC 249, cited by the applicant, does not come to his help in any way.
14. It is also submitted by the learned counsel for the applicant that the applicant having been prevented from joining his duties on 24.12.2001, the respondents ought to have treated the intervening period from 1.8.2001 to 27.4.2006 as qualifying service only for pension. In order to consider this submission, it would be necessary to quote hereunder the order dated 15/19.5.2009 (Annexure A-1):
ORDER Sh.Sohan Lal while working as Group D at Kendriya Vidyalaya, Sector-8, Rohini was absenting unauthorisedly w.e.f.01.08.2001 and the Principal, K.V., Sector-8, Rohini has issued Memorandum to Sh.Sohan Lal vide No.F.PF/KVR-8/2001-02 dated 19.09.2001 with the direction to present himself before the Principal immediately but the envelop containing the Memorandum was returned back by the postal department due to his non-availability at the station. Thereafter, the Principal has issued a show cause notice under Article 81(D) vide his Order No.F.PF/KVR-8/2001-02/229 dated 25.10.2001. The said envelope was also returned by the postal department for the same reason.
Sh.Sohan Lal reported for duty on 24.12.2001 but the Principal did not allow him to join, as the explanation submitted by Sh.Sohan Lal in response to the said show cause notice was not satisfactory. Afterwards the disciplinary authority has confirmed the loss of lien on his post w.e.f 29.12.2001.
Sh.Sohan Lal made an appeal dated 05.03.2002 against the order of removal from service. The appeal was time barred even then the Appellate Authority considered his appeal and the said appeal was rejected by the Appellate Authority vide Memorandum No.F.25-43/2002-KVS (DR)/EO(T)/15239 dated 01/02/08/2002.
Sh.Sohan Lal being aggrieved with the order of the Appellate Authority preferred a revision petition dated 16.08.2002 to the Assistant Commissioner, KVS (RO) Delhi being the Revisioning Authority and the Reviewing Authority after careful consideration of the fact of the case reached to the conclusion that the decision of the Principal, KV, Sector 8, Rohini inremoving Sh.Sohan Lal from the services of the Sangathan was in right direction of the Article 81(D) of Education Code and the appeal dated 05.03.2002 rejected by the Appellate Authority were in order vide Order No.40-10/2002-KVS(DR)/10744-745 dated 22/23.04.2003.
Sh.Sohan Lal filed an OA No.2388/2003 before the Honble CAT, Principal Bench, New Delhi against the impugned order dated 29.12.2001 removing the applicant on loss of lien from service under Article 81(D) of Education Code as also order dated 02.08.2002 passed in appeal as well as Order dated 23.04.2003 passed in revision upholding the punishment.
The Honble CAT in its Order dated 18.01.2006 served by Sh.Sohan Lal vide his application dated 08.02.2006 has partially allowed the OA with the direction that the Orders passed in appeal and revision are set aside and the matter is remanded back to the Appellate Authority to consider in true perspective as per Rule 81(D) the appeal of the applicant and contents thereof with the specific reference to the proportionality of punishment and medical records of the applicant.
Sh.Sohan Lal was given a personal hearing on dated 31 of March 2006 wherein he has stated that he was sick during the period of absence for which he has already produced medical certificates from the competent medical authority. He also stated that when the show cause notice for 81(D) was issued by post, he has gone out for some personal work and the letter could not be received and he was very much in the station and the allegations made by the authorities are baseless. Although Sh.Sohan Lal tried to defend his stand, it could neither be comprehended nor justified, why he was on leave continuously for long duration during different spells i.e.
1) 13.03.89 to 22.03.90 = 367 days
2) 20.07.90 to 03.01.91 = 168 days
3) 01.09.92 to 15.01.95 = 867 days
4) 01.03.95 to 16.07.95 = 138 days
5) 10.01.97 to 09.03.98 = 424 days
6) 07.08.98 to 12.10.98 = 66 days
7) 10.04.01 to 19.06.01 = 71 days(EL)
8) 20.06.01 to 31.07.01 = 42 days If at all Sh.Sohan Lal was suffering from tuberculosis as stated by him, the previous leave, as mentioned above, should not have been sanctioned without any second opinion from the medical board constituted by the Regional Office, Delhi. Necessary precautions should have been taken by the concerned authorities while sanctioning the leave. Sh.Sohan Lal, during the course of personal hearing, contradicted his own statement and also suppressed the facts, for example the details about his family members and their career. Although it is not justifiable for an employee to be on leave for such a long duration on different spells, keeping in view the leave already sanctioned by different authorities at various points of time a sympathetic view has been taken in the case of Sh.Sohan Lal and also he being a low paid employee.
Appellate authority keeping in view the leave already sanctioned by different authorities at various points of time and also taking a sympathetic view on a low paid employee allowed the appeal of Sh.Sohan Lal and reinstate him in the services of the Kendriya Vidyalaya Sangathan as Group D with posting at KENDRIYA VIDYALAYA, KESHAVPURAM (2ND SHIFT), NEW DELHI.
Consequent upon joining at Kendriya Vidyalaya, Keshavpuram, Shri Sohan Lal has submitted applications for regularization of his intervening period from 01.08.2001 to 28.04.2006 the date on which he has joined duties at Kendriya Vidyalaya, Keshavpuram with all consequential benefits.
The then appellate authority had carefully examined the request of Shri Sohan Lal and on perusal of the record has reached to the conclusion that Shri Sohan Lal has absented himself willfully without prior permission and sanction of leave from the competent authority and has not performed any duty during this period. His request for regularization of this period with all consequential benefits has no merit.
The intervening period w.e.f. 01.08.2001 to 27.04.2006 for which no leave had been sanctioned and during which Shri Sohan Lal, Group D has absented himself from duty willfully was treated as dies non for all purposes vide this Office letter of even no. dated 04.07.2007.
Shri Sohan Lal being aggrieved with the order of the then Appellate Authority filed an OA No.1068/08 before the Honble CAT, Principal Bench, New Delhi, against the impugned order dated 04.07.2007 treating his period of absence as dies non. The Honble CAT, Principal Bench, New Delhi passed an order dated 07.01.2009 in the OA No.1068/08 with the direction to the respondent to reconsider this period treating as qualifying service only for pension.
The Honble CAT, Principal Bench, New Delhi in the above said OA has only directed KVS to re-consider the matter for treating the period from 01.08.2001 to 27.04.2006 as qualifying service for pension. It has been reconsidered and since Pension Rules do not permit the dies non period as qualifying service.
willful absence from duty, even though not covered by grant of leave does not entails loss of lien. The period of absence not covered by grant of leave shall have to be treated as dies non for all purposes viz. increment, leave and pension. Thus the intervening period from 01.08.2001 to 27.04.2006 which has already been treated as dies non for all purposes cannot be treated as qualifying service for pension purpose only as per extant rules.
15. The law is well settled that while exercising power of judicial review, scope for interference by Court/Tribunal with the decision taken by the administrative or statutory authority is very limited. Unless it is shown that there has been violation of the principles of natural justice in the decision making process, or that the decision has been made by the administrative or statutory authority contrary to the provisions of law, or that the findings arrived at by such authority are perverse and no prudent person would have arrived at such findings, the Tribunal/Court should not interfere with the same. Keeping these settled principles in view, we have very carefully gone through the order impugned in the Original Application and the materials available on record. From the perusal of the impugned order (Annexure A-1) and the materials available on record, it becomes apparent that at every stage the principles of natural justice were scrupulously followed by the appointing authority and appellate authority, and the applicant was also afforded opportunity of being heard. It is not disputed by the applicant that in the past he had remained on long continuous leave even for years and months together in different spells. Thus, the conclusion reached by the appellate authority in the impugned order remains unassailable. The appellate authority cannot be said to have acted contrary to the rule which is applicable to a case similar to that of the applicant. Even though the appellate authority has referred to Rule 27 of CCS (Pension) Rules, yet such reference does not appear to have materially affected the conclusion arrived at by him in the impugned order. The appellate authority, while reconsidering the claim for treating the intervening period as qualifying service only for pension, has taken into consideration the relevant factors. Thus, we do not find any infirmity in the impugned order. This apart, it is to be noted that the whole structure of reinstatement of applicant in service rests upon sympathy and leniency, he being a low paid employee and nothing else. On the facts and in the circumstances of the case, we find much force in the submission of the learned counsel for the respondents that allowing the claim of the applicant for treating the intervening period as qualifying service only for pension would not only be against public interest, but also encouraging the employees/teachers of the K.V.S. to remain absent unauthorisedly and subsequently ask for similar treatment in the event such period of unauthorized absence is treated as dies non for all purposes, thus and thereby infusing indiscipline in those employees/teachers and defeating the aims and objectives of the provisions contained in Article 81(D) of the Education Code for K.V.S.
16. In the light of the above discussions, we hold that there is no merit in the Original Application. Accordingly, the Original Application is dismissed. No costs.
(RAJ VIR SHARMA) (V.N.GAUR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN