Central Administrative Tribunal - Delhi
Dr Devendra Singh vs Science And Technology on 11 January, 2024
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Item No. 28 O.A. No. 3633/2022
Court-VI
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3633/2022
M.A. No. 3682/2022
Reserved on:- 03.01.2024
Pronounced on :-11.01.2024
Hon'ble Dr. Chhabilendra Roul, Member (A)
Dr. Devendra Singh,
S/o Late Shri Sunhari Lal
R/o E-9, Tower-12,
Type V Kidwai Nagar
New Delhi-110023
...Applicant
(Through Advocate: Mr. Rakesh Kumar Singh)
Versus
1. Union of India
Through Secretary
Ministry of Science & Technology
Dept. of Science & Technology,
Technology Bhawan
New Mehrauli Road, New Delhi-110016
2. Joint Secretary (Administration)
Ministry of Science & Technology
Dept. of Science & Technology,
Technology Bhawan
New Mehrauli Road, New Delhi-110016
3. Deputy Secretary
Ministry of Science & Technology
Dept. of Science & Technology,
Technology Bhawan
New Mehrauli Road, New Delhi-110016
4. Under Secretary
Ministry of Science & Technology
Dept. of Science & Technology,
Technology Bhawan
New Mehrauli Road, New Delhi-110016
...Respondents
(Through Advocate: Mr. Hanu Bhaskar)
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Item No. 28 O.A. No. 3633/2022
Court-VI
ORDER
The present application has been filed by the applicant seeking the following relief(s):-
"i. Quashing the Order dated 30.12.2020 and Office Memorandum dated 28.06.2022 (Impugned Orders) vide which a recovery of Rs 19,85,902/- is being made from the applicant's salary and his representations challenging the same were rejected, being illegal, arbitrary and whimsical to meet the ends of equity, justice and fair play;
ii. To direct the respondents to stop the recovery initiated from the monthly payment of the applicant and refund the recovered amount with penal interest @ 18% per annum from the date of recovery till its payment to the applicant;
iii. To direct the respondents not to take any coercive steps against the applicant;
iv. To direct the respondents to utilize the skills of the applicant by allotting him scientific work commensurate to his academic qualifications and experience; v. To award to the applicant compensation to the extent of Rupees Ten Lakh only for subjecting him and his family to harassment and extreme mental trauma by illegally initiating recovery of Rs. 60,000/- per month from his payment;
vi. To award Rupees Two Lakh only as litigation expenses; and vii. To pass any other or such further order (s) as deemed fit by this Hon'ble Tribunal in order to secure the ends of justice in favour of the applicant."
2. The brief factual matrix of the present case is as follows:-
2.1. The applicant was appointed as Meteorologist Grade II in the India Meteorological Department (IMD), Ministry of Science and Technology on 24.01.1992.
Subsequently, he was appointed as Scientist D in the Department of Science and Technology on 02.06.2006. 3 Item No. 28 O.A. No. 3633/2022 Court-VI 2.2. The applicant earned his regular promotions and was subsequently, promoted to the post of Scientist F. 2.3. During the period of 08.02.2017 to 21.04.2019, it was found that the applicant was not marking his attendance in the Biometric Attendance System (BAS). 2.4. Vide letter dated 19.02.2019, the respondents intimated to the applicant that his case was considered for retirement under Fundamental Rule 56(j) and Rule 48 of the CCS (Pension) Rules, 1972.
2.5. The committee constituted under the Chairmanship of the Secretary of the Department of Science and Technology reviewed the case under Fundamental Rule 56(j) of the CCS (Pension) Rules, 1972, instead of taking a final decision, decided that an explanation may be sought from the applicant for the following:-
"5. In r/o Dr. Devender Singh, Scientist 'F', the Committee decided that explanation may be sought from him on the following before taking a view in the matter.
(i) Non-completion of ACR /APARs Dossiers for the period 2009-10 and 2013-14 onwards.
(ii) Non-reporting to his present controlling officer.
(iii) Not marking attendance in BAS since 08.02.2017 which tantamounts to unauthorized absence from office."
2.6 In pursuance of the committee's recommendations, the respondents issued a memorandum dated 19.02.2019 to the applicant seeking clarification regarding the 4 Item No. 28 O.A. No. 3633/2022 Court-VI shortfall observed by the said committee. Subsequently, the respondents issued various reminders to the applicant to furnish the clarifications and the last was on 20.10.2020. In response to the last reminder, the applicant submitted a detailed reply which is annexed at annexure R-12 of the counter affidavit, which reads as under:-
"Kindly refer Memorandum F. No. A -01/52/2004-E.I dated 20th October 2020 regarding attested copies of my medical prescriptions/documents by CGHS Doctor and also requirement of leave on medical grounds. In this regard, I wish to state that CGHS Doctor has attested my all medical prescriptions/documents and has also specifically mentioned that I suffered from severe depression and my mental health was in a very bad condition during the period 08-02-2017 to 21-04-2019. All the attested copies of medical prescriptions/documents and recommendation letter for leave on medical grounds are enclosed with this note. These documents may kindly be considered for further necessary action. Admissible leave may kinally be granted."
2.7 After considering the reply of the applicant, the respondents, vide order dated 30.12.2020, regularized the services for the periods of absence by granting various kinds of leaves to the applicant. Because there was inadequate number of days of earned leave, commuted leave, and half-pay leave, certain period was regularized as extra-ordinary leaves. The applicant submitted a representation against this order dated 30.12.2020 granting various periods of leave, vide his letter dated 15.02.2021.
5Item No. 28 O.A. No. 3633/2022 Court-VI 2.8. The said representation of the applicant was considered by the respondents vide order dated 23.02.2021. A detailed order was passed regarding the points raised by the applicant in his representation dated 15.02.2021. This response by the respondents dated 23.02.2021 (annexure R-14 attached to the counter affidavit) gives a detailed explanation regarding every point raised by the applicant in his representation dated 15.02.2021. However, the applicant was not satisfied with the response given by the respondents. Being aggrieved, he has filed the present OA seeking the above-mentioned reliefs.
3. Notices were issued and the respondents have filed their reply. Rejoinder thereto has already been filed.
4. In support of the reliefs sought by the applicant, the learned counsel for the applicant points out the following grounds:-
4.1. The applicant was suffering from depression. From time to time, the applicant has submitted representations to the respondents to conduct a medical examination. 4.2. The learned counsel for the applicant referred to a representation dated 04.10.2021 (annexure A-39) vide 6 Item No. 28 O.A. No. 3633/2022 Court-VI which he had requested for medical examination at Dr. Ram Manohar Lohia Hospital, New Delhi. Because of his medical condition, particularly as he was suffering from depression, he could not mark his presence on the Biometric Attendance System, and that led to the misinformation on the part of the respondents that the applicant was unauthorizedly absent from the office. 4.3. Learned counsel for the applicant further states that in his representation dated 04.10.2021, the applicant has specifically mentioned that he was not absent from the office and he was not marking his presence in the Biometric Attendance System.
5. Per contra, the learned counsel for the respondents referred to the counter affidavit filed by the respondents in which they have categorically stated that the representation of the applicant was sympathetically considered and the department has taken a lenient view regarding his period of absence from office. Instead of taking action under Fundamental Rule 56(j), the department was magnanimous and on humanitarian grounds, regularized his period of absence by granting various leaves as per the rules. After exhausting the permissible leaves, his period of absence was regularized by sanctioning extra-ordinary leave for the period of absence which amounts to sanction of leave without pay. Some of the 7 Item No. 28 O.A. No. 3633/2022 Court-VI leaves granted to the applicant during this period will not carry leave salary such as extra-ordinary leaves or half-pay leave and the applicant was also not entitled for transport allowance and annual increments during the period of his absence from the office. Accordingly, a total recovery of Rs.19,68,785/- was ordered vide memorandum dated 30.12.2020 (impugned order). The said order dated 30.12.2020 contains the detailed calculations of the recoverable amount from the applicant.
5.1. The learned counsel for the respondents further states that there is no illegality in the order dated 30.12.2020 as the respondents have exercised their powers under CCS (Leave) Rules, 1972, and granted the leaves due to the applicant. Moreover, the respondents have taken a lenient and humanitarian view while regularizing the period of absence of the applicant.
6. In rejoinder, the learned counsel for the applicant fairly argues that there are enough documents and evidence to show that the applicant was present during the period from 08.02.2017 to 21.04.2019. He has submitted a lot of representations and received communications from the office as well as from third parties as functionary of the department which show that the applicant was very much present in the office. Hence, the order dated 30.12.2020 is illegal and needs to be quashed.
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7. I have heard the arguments by both the counsels for the parties and perused the records of the case thoroughly. Here, a short issue is whether the order dated 30.12.2020 by the respondents suffers from illegality and whether the factual position stated by the applicant in his various representations have not been taken into consideration while issuing the said order as well as the subsequent order dated 23.02.2021. The fact that the applicant was suffering from severe depression is an admitted fact. It is also admitted by both the parties that, from time to time, the applicant has been directed to appear before the specialists in Ram Manohar Lohia Hospital, New Delhi. The applicant has also submitted various medical certificates from other hospitals including private hospitals. In respect of his medical condition, learned counsel for the respondents has relied on the letter dated 04.11.2020 submitted by the applicant to Secretary, Department of Science and Technology in response to Memo dated 20.10.2020 from the respondents. The applicant has categorically referred to the period of 08.02.2017 to 21.04.2019 and requested that "admissible leave may be granted".
7.1. Perusal of the impugned order dated 30.12.2020 shows that the respondents have done an elaborate exercise and granted various leaves to the applicant for the period of his alleged absence from office. The leaves include Commuted 9 Item No. 28 O.A. No. 3633/2022 Court-VI Leave, Earned Leave, Half Pay Leave, Extraordinary Leave, etc. By granting Half Pay Leave and Extraordinary Leave for various periods, the respondents have taken a lenient and humanitarian view in view of the medical condition of the applicant and regularized his service by granting such leave. In ordinary course of time, the respondents could have taken a stringent view and could have instituted departmental/disciplinary proceedings for the alleged period of absence and that could have resulted in severe punishment including dismissal from service. The respondents have not taken such drastic steps considering the medical situation of the applicant. However, the respondents have not also initiated or has not issued a showcase notice for his period of absence while he was absent from office. The evidence of his absence from duty has been inferred from the fact that the applicant has not put his attendance in the Biometric Attendance System installed in the office. Learned counsel for the applicant has submitted that because of the medical situation of the applicant he was not diligent to mark his attendance in the Biometric Attendance System and he has, through his representations, submitted that he was attending office and he has received official communications from the respondents as well as the third parties being Scientist F working under the respondents. Hence, the issue now becomes that whether there is enough evidence, apart from the Biometric Attendance System, that the applicant 10 Item No. 28 O.A. No. 3633/2022 Court-VI was actually attending office for intermittent periods. The applicant has not been able to produce any other evidence during the proceedings in this Tribunal to substantiate his claim that the applicant was actually attending office intermittently during the period he was suffering from severe depression. In addition, the applicant was paid salary by the competent authority. When the salary was paid to the applicant, it could not be inferred that he was unauthorisedly absent from duty. In view of this, the applicant deserves a second chance to prove his point that he was intermittently attending office and hence the period of leave as granted by the respondents needs a re-look.
8. In view of the above, the applicant is directed to make a fresh representation to the respondents giving enough documentary or otherwise evidence that he was intermittently attending office for the various periods during the period he was shown as absent from office. He should submit representation within fifteen days from the date of receipt of a certified copy of the order. The respondents are directed to consider such representation by the applicant within six weeks from the date of receipt of such representation and pass a reasoned and speaking order regarding modification of order dated 30.12.2020, if required. Till then, the respondents are directed not to effect in recovery from the applicant in pursuance of order dated 30.12.2020.
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9. The OA is disposed of in the above terms.
10. There shall be no order as to costs.
(Chhabilendra Roul) Member (A) /aks/