Central Administrative Tribunal - Ernakulam
N Cyrus vs The Serveyor General,Survey Of India, ... on 13 January, 2022
1 O.A No. 180/00109/2021
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00109/2021
Thursday, this the 13th day of January, 2022.
CORAM:
HON'BLE Mr. P. MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr. K.V. EAPEN, ADMINISTRATIVE MEMBER
N. Cyrus, 59 years,
S/o. J. Nelson (late),
Draftsman Division-I,
Kerala and Lakshadweep Geo-Spatial Data Centre,
C.G.O. Complex, Poonkulam, Vellayani (P.O),
Thiruvananthapuram - 695 522.
Residing at Christ Villa,
H. No. 581/B, Chappathumukku Jn.,
Thottakkadu P.O., Attingal, Trivandrum - 695 605. - Applicant
[By Advocate : Mr. Arun B.Varghese]
Versus
1. The Surveyor General,
Survey of India, Surveyor General's Office,
Post Box No. 37, Dehradun - 248 001,
Uttarakhand.
2. Additional Surveyor General,
Southern Zone Office,
Koramangala Second Block,
Bengaluru, Karnataka - 560 034.
3. Director,
Karnataka Geo-Spatial Data Centre,
P.O. Box No. 3403, Sarjapur Road,
Koramangala Second Block,
Bengaluru, Karnataka - 560 034.
4. Director,
Kerala and Lakshadweep Geo-Spatial Data Centre,
C.G.O. Complex, Poonkulam, Vellayani (P.O),
Thiruvananthapuram - 695 522. - Respondents
[By Advocate : Mr. Thomas Mathew Nellimoottil, Senior PCGC]
The application having been heard on 23.12.2021, the Tribunal on
13.01.2022 delivered the following:
2 O.A No. 180/00109/2021
O R D E R (Oral):-
Per: Mr. K.V. Eapen, Administrative Member The applicant has filed the O.A seeking the following reliefs:-
"i. Set aside Annexure A-9 order dated 01.02.2021, A-10 order dated
02.02.2021 issued by the 2 nd respondent and Annexure A-11 proceedings issued by the 3 rd respondent dated 27.01.2021 as illegal and unjust.
ii. to direct the respondents to regularize the period of service of the applicant from 06.04.2011 to 04.12.2011 as duty for all purposes and to pay all consequential monetary benefits including transportation allowances, bonus and increments due, with arrears."
2. The facts of the case as given by the applicant are as follows:-
The applicant has filed the O.A aggrieved by the issuance of the orders at Annexure A-9 and A-10 by which the period from 06.04.2011 to 04.12.2011, i.e 243 days in his case is to be treated as "absence from duty without any authority" under the proviso to FR 17 and that he is not entitled to any pay and allowances for the said period from 06.04.2011 to 04.12.2011. Further, it has been declared that the said period will be treated as "dies-non" for all purposes, viz., increment, leave and pension and shall not be construed as interruption or break in service. In addition to this, at Annexure A-11, a letter addressed to the 2 nd respondent from the 3rd respondent has been produced, under which, it has been recommended that the competent leave sanctioning authority may treat the unauthorised absence of 243 days as dies-non for all purposes viz., increment, leave and pension vide Government of India decision below Rule 25 of CCS (Leave) Rules, 1972. It was also been indicated therein that since he was absent from duty during this period, his pay and allowances will have to be recovered, treating the same as unauthorised absence under the proviso 3 O.A No. 180/00109/2021 to FR 17 with the approval of competent leave sanctioning authority. In addition, it has been stated that, based on these directions, the period will be regularised by initiating recovery of over drawn pay and allowances as attached after completion of all cases and the direction for recovery to the current DDO, where the individual is posted will be forwarded.
3. The applicant submits that he had less than 11 months service left, as he was due to retire on 31.12.2021, when the orders at Annexure A-9, A-10 and A-11 were received by him. He submits that he is a locomotor disabled handicapped person (amputation of right leg). The finding that he is unauthorizedly absent for the said period and consequent directions to recover the pay and allowances as per Annexure A-9, A-10 and A-11 proceedings is arbitrary and unjust as it has been issued after almost 10 years at the fag end of his service. The applicant also relies upon the judgment of the Hon'ble Supreme Court in State of Punjab v. Rafiq Masih (White Washer), 2015 (1) KLT 429 (SC), that recovery from employees who are due to retire within one year of the order of recovery, would be impermissible in law. He submits that the steps to recover the pay and allowance already paid to him for the above period is against the law and settled judicial pronouncements. In addition, the impugned orders at Annexure A-9, A-10 and A-11 have been issued without notice and an opportunity of hearing in violation of the principles of natural justice.
4. The applicant submits that there is no basis to conclude that he was unauthorizedly absent from 06.04.2011 to 04.12.2011. Even though, 4 O.A No. 180/00109/2021 orders were issued by the respondents transferring him to Chennai from Bangalore, the said order was stayed by an interim order issued by the Court of the State Commissioner for Persons with Disabilities and the applicant was directed to be paid salary. In addition to this the Surveyor General of India had, as per order dated 29.06.2011, also directed to pay his salary. The Department being well aware of the order passed by the said State Commissioner, is without basis treating the applicant as unauthorizedly absent for the said period. This is clearly discriminatory as in the case of similarly situated employees, who had been transferred along with the applicant, the period has been regularised and they were paid the consequential monetary benefits.
5. We have gone through the material provided by the applicant. We feel that the crux of the issue in this O.A is whether the said period between 06.04.2011 to 04.12.2011 has been correctly treated by the Department as a period of absence from duty without any authority as this in turn, has lead to the orders that the period be treated as "dies-non" for all purposes viz., increment, leave and pension and not to be construed as interruption or break in service. Thus, we will broadly confine our examination to whether these 243 days have been correctly treated by the Department as "absent from duty without any authority" under the proviso to FR 17(i) and whether, therefore, he is not entitled to any pay and allowances and recovery is justified along with that imposition of "dies non".
5 O.A No. 180/00109/2021
6. In their reply statement, the respondents have submitted that the applicant, while working as Draftsman Grade II in the office of the Director, Karnataka Geo-Spatial Data Centre, (GSDC) Bangalore, was transferred to the Tamil Nadu, Puducherry and Andaman & Nicobar Islands Geo-Spatial Data Centre, Chennai vide order dated 01.04.2011, produced at Annexure R-1. He was also issued with a movement order dated 05.04.2011, produced at Annexure A-1, in the O.A. However, instead of joining at the new place of posting at Chennai, the applicant approached the office of the State Commissioner for Persons with Disabilities, Bangalore. The State Commissioner for Persons with Disabilities then requested the Director, Karnataka Geo-Spatial Data Centre to cancel the movement order out of Bangalore and enable his treatment at Bangalore vide letter dated 20.04.2011 as the applicant was an orthopedically handicapped person under treatment at Hosmat Hospital, Bangalore. This letter dated 20.04.2011 has been produced at Annexure R-2.
7. It is our considered opinion that this letter is crucial for the consideration of the issue outlined earlier. It is to be noted that as per this letter dated 20.04.2011, the Director of the Karnataka GSDC was requested to cancel the movement order of the applicant out of Bangalore and enable his treatment at Bangalore. It was also noted in the said letter of the State Commissioner that the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, is in force and that the Commissioner under the Act was empowered to protect 6 O.A No. 180/00109/2021 the rights and look into the grievances of persons with disabilities. Further, the State Commissioner for Persons with Disabilities was vested with powers of Civil Court for the purpose of discharging the functions under this Act and every proceedings before it is a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. It was noted that the applicant who is an orthopedically handicapped person (amputation of the right leg) has been transferred to Tamil Nadu and the said person is under treatment at Hosmat Hospital, Bangalore and is on prosthesis. It was also recorded that the persons with disabilities need to be given preference in posting to the place of their preference and thus the movement order of the applicant was requested to be cancelled to enable his treatment at Bangalore. In addition to this, another letter to the Director was issued by the State Commissioner for Persons with Disabilities vide Annexure A-3 in the O.A dated 05.05.2011 with a request to make suitable arrangements for payment of salary, as a special case being a disabled person. It was also requested to cancel the movement order immediately and enable the treatment of the applicant. It was also noted that no reply had been received till the present to their letter dated 20.04.2011, produced at Annexure R-2. In addition, it was mentioned in the same letter at Annexure A-3 that the Central Administrative Tribunal, Bangalore Bench in O.A No. 145/2011 had directed the office to consider a suitable via- media for payment of salary for some other employees, who had been given movement orders. It was also requested that the transfer application of the applicant should be considered. 7 O.A No. 180/00109/2021
8. It is not clear as to whether the respondents gave any reply to these letters issued by the State Commissioner for Persons with Disabilities or whether they requested the State Commissioner to modify his requests at any point. On the other hand it seems to appear that they took steps to follow some of these requests or instructions without much question. The Director, GSDC, Bangalore however made a reference to the higher authorities relating to the payment of salary vide Annexure R-3. It was also mentioned in the letter that leave in respect of the applicant and another official have not been approved as the leave applications were received only after relieving the officers on transfer. (Thus, it appears unlike what is contended now that grant of leave on applications made by the applicant was duly considered and not approved.) It was then clarified in the letter of the Surveyor General of India, Dehardun at Annexure R-5 that the salary of the applicant may be drawn as per rules and admissibility. This point is relevant as the respondents have claimed that there were no interim orders for the stay of transfer of the applicant from Bangalore to Chennai and thus his remaining at Bangalore amounted to unauthorised absence. We will explore this issue in detail later.
9. The State Commissioner for Persons with Disabilities issued another letter dated 10.08.2011 at Annexure R-6, relating to Transport Allowance not being paid to the applicant in his Salary Bill. In this letter the State Commissioner for Persons with Disabilities again requested the Director, Karnataka Geo-Spatial Data Centre to cancel the movement of the applicant, who is orthopedically handicapped, and to make suitable 8 O.A No. 180/00109/2021 arrangements for full salary in interest of the person with disability. Finally, the State Commissioner issued the orders dated 18.11.2011, which have been produced in the O.A at Annexure A-6, by which the Survey of India/Karnataka Geo-Spatial Data Centre were directed to cancel the transfer order dated 01.04.2011 and the movement order dated 05.04.2011 of the applicant and to continue his services at Bangalore. It was also directed to make suitable arrangements for full payment of salary and allowances. It was also indicated that, in future if the Department wants to transfer him, his nature of disability, age, medical treatment, availability of quarters etc., should be taken into consideration before making such transfer order. As per the respondents, the applicant only then re-joined duties at Karnataka Geo-Spatial Data Centre, Bangalore on 05.12.2011.
10. At the same time the Department challenged the Annexure A-6 order in the Karnataka High Court by WP No. 12894/2012 (S-TR). The Hon'ble High Court passed final orders in this W.P on 17.01.2018. The Annexure A-6 impugned order dated 18.11.2011 passed by the State Commissioner for Persons with Disabilities was set aside. The orders of the Hon'ble High Court have been produced at Annexure A-7 in the O.A. The Hon'ble High Court in its order observed that the principles that emerge from the case law on the subject of dealing with the persons with disabilities and their rights are, firstly, that the person filing the complaint must be disabled. Secondly, the complaint may be related to either depriviation of rights of person with disability or with regard to non-implementation of 9 O.A No. 180/00109/2021 laws, rules, bye-laws, regulations, executive guidelines and instructions. Thirdly, the Commissioner shall take up the alleged violation of the rights or non-implementation of the rules and regulations, etc. by the authority with the appropriate authorities. It was observed that in order to carry out the enquiry, the Commissioner is clocked with certain powers of the Civil Court. However, it was also observed that the Commissioner cannot pass any mandatory, prohibitory injunction or interim order. The Hon'ble High Court also observed that the Commissioner cannot pass a final order interfering with a transfer order. The Commissioner can interfere if and only if a case is made out of discrimination adversely affecting the rights of a disabled person or if there is violation of any law, rules and regulations, etc. In the present case, the Hon'ble High Court observed that the respondent was merely transferred from Bangalore to Chennai and since transfer is but an incidence of service, the respondent cannot claim that he is being discriminated against, or being deprived of any rights. Thus, the respondents' case does not fall within Section 62(a) of the Act. Neither does it fall within the ambit of Section 62 (b) of the Act as the respondent did not allege that the petitioner has failed to implement any law, rules, bye-laws, etc. Thus, it was found that learned Commissioner was unjustified in cancelling the transfer order dated 01.04.2011 and movement order dated 05.04.2011. As such, the Hon'ble High Court allowed the Writ Petition setting aside the impugned order dated 18.11.2011 passed by the State Commissioner for Persons with Disabilities.
10 O.A No. 180/00109/2021
11. Immediately after the above Order the respondents in the O.A issued another transfer order to the applicant, transferring him to Chennai vide Annexure R-8 dated 31.08.2013. The applicant then approached the C.A.T, Bangalore Bench in O.A No. 1461/2018. The Tribunal first granted status quo in the matter and allowed the applicant to continue at Bangalore until further orders. However, after final hearing it was found that the O.A had no merit and it was dismissed on 06.02.2019, through the orders produced at Annexure A-8. The Department then issued a letter to the applicant directing him to join at Tamil Nadu, Puducherry,, Andaman and Nicobar Islands Geo-Spatial Data Centre, Chennai by 22.02.2019. He was relieved on 21.02.2019, which was again modified, and he was again relieved on 13.03.2019. The applicant then joined duties at Chennai on 15.03.2019. After reporting at Chennai the applicant submitted a request on 12.12.2019 for crediting the Earned Leave and Half Pay Leave for the period 01.04.2011 to 31.12.2011. From the narration of events provided earlier, it seems that it is while dealing with this application that the respondents appear to have decided to take the impugned decisions relating to the period concerned. They decided that the applicant was absent from duty without authorisation from the date after the first movement order was issued, 06.04.2011 upto 04.12.2011, the day before he joined back after the final orders of the State Commissioner for Persons with Disabilities were passed. It was then that steps were taken for recovering his pay and allowances treating the period as absence from duty without any authority, under the proviso to FR 17(1) resulting in the 11 O.A No. 180/00109/2021 impugned orders at Annexure A-9, A-10 and proceedings at Annexure A-11.
12. When the O.A was first taken up on 26.02.2021 by the Tribunal, it was informed by the then learned counsel for the applicant that the respondents had issued a recovery notice on the applicant on 09.02.2021. Since only a short time was available for respondents to come up with instructions, the Tribunal passed orders not to recover any amount from the month of February, 2021. This interim order was extended until further orders on 30.07.2021. Later, the applicant retired from service on 31.12.2021. It is the contention of the respondents that the applicant had not performed any public service in the period from 06.04.2011 to 04.12.2011. Thus, his unauthorized absence cannot be at the cost of public money. Hence, based on the rule of 'no work, no pay', necessary deduction has been initiated as the overdrawal of salary has to be recovered as per the rules. The submission made by the applicant that he was present in the office in Bangalore during this period was false, as the movement order was issued on 05.04.2011 and he joined back only on 05.12.2011. As regards the delay in instituting the recovery from the applicant the respondents submit that it was due to the matter being 'subjudice' in the Court of Commissioner for Persons of Disabilities, Bangalore, subsequently in the High Court of Karnataka and later in C.A.T, Bangalore Bench. They also submit that in the absence of any kind of leave application the recovery of public money for the period for which he failed to carry out public service has to be done. (However, as 12 O.A No. 180/00109/2021 noted earlier, there was mention of leave applications being rejected in Annexure R-3 letter produced in the reply.) The respondents submit that the claim that similarly placed employees were given such advantages was also false, as another employee Shri M. Balachennaiah, Draftsman Division-I, who was also transferred along with the applicant and who had not attended the office from 06.04.2011 to 30.05.2011 under the same movement order was treated in a similar way as the applicant and his period of absence was declared as 'dies-non' by the Competent Authority.
13. The respondents also submit that the directions of the State Commissioner for Persons with Disabilities were set aside by the Hon'ble High Court of Karnataka. Since the applicant was merely transferred from Bangalore to Chennai and transfer is but an incidence of service the applicant cannot claim that he is being discriminated against or being deprived of any rights. The Hon'ble High Court of Karnataka did not quash the transfer order issued earlier by the respondents. Hence the same was re-issued. The services of the applicant were required at Chennai as he is the senior most and well experienced Draftsman and it is not harassment as alleged by him. Chennai also hosts a number of reputed hospitals and he could have continue to get his treatment at Chennai as well. The Transport Allowance was not admissible as per Rules which was clarified vide Annexure A-5. From this, it is clear that he was absent from duty for the said period of 243 days. The pay and other allowances were allowed to be drawn only as per the directions of Commissioner for 13 O.A No. 180/00109/2021 Persons with Disabilities, as a special case, being a disabled person. The claim of the applicant that he was attending office everyday on the strength of an interim order is false and strongly denied, as there was neither an interim order for stay of the transfer order nor any status quo order issued by the Commissioner for Persons with Disabilities. As the applicant was issued with a Movement Order, he was deemed to be relieved from the Karnataka Geo-Spatial Data Centre, Bangalore from 06.04.2011. Further, as per the records, he reported back for duty on 05.12.2011, after final orders of the State Commissioner for Persons with Disabilities were passed. Being a Draftsman Grade II, he cannot compare himself with the Gazetted Group B Officers /Officer Surveyors, who had approached CAT on a different manner as they were from different cadres having different responsibilities. Their case was on different grounds where an interim order of status quo was given and later upheld by the CAT, Bangalore Bench. When compared with Shri M. Balachennaiah, Draftsman Division-I, who was also transferred to Chennai and movement order issued on 05.04.2011, it is seen that that official had approached the Commissioner for SC/ST and had remained absent after being relieved from duty with effect from 05.04.2011. Subsequently, Shri M. Balachennaiah joined duty on 26.12.2011; but his period of absence of 264 days was treated as 'dies-non'. Thus, in comparison, there was no discrimination done to the applicant.
14. It is submitted that the recovery of drawn pay and allowances for the period is also correct as the applicant had failed to carry out any public 14 O.A No. 180/00109/2021 service during the period of absence. He should have joined for duty at the place of posting immediately on relief instead of which, he joined back on 05.12.2011 at Bangalore GDC itself without assigning any reason for the interim period. Moreover, the Hon'ble High Court has in its order dated 17.01.2018 in W.P. © No. 12894/2012 (S-TR) set aside the impugned order dated 18.11.2011 passed by the Court of the State Commissioner for Persons with Disabilities. Thus, the decision of the 2 nd respondent in this regard, as given in Annexure A-9 and A-10, is as per the FR/SR as he is the Competent Authority for issuing such orders of Group-C officials in case of any unauthorized absence from work for more than 180 days. It is reiterated that the recovery of pay drawn could not be effected, earlier, as the matter was subjudice in 2019. The Judgment of the Hon'ble Supreme Court in Rafiq Masih, supra, only pertains to cases where payments have been mistakenly made by the employee in excess of their entitlements. The instant case was different, as the payment was made to the applicant by the 'interim orders' (term used by the respondents) of the Court of the State Commissioner for Persons with Disabilities culminating in the final order of the Court of the State Commissioner, which later was quashed by the Hon'ble High Court. The Competent Authority took the administrative action against the applicant under the concerned Leave Rules and not any disciplinary action under the CCS (CCA) Rules. The action taken to treat the unauthorized period as 'dies-non' is done as per these rules and the plea that it was done without basis is denied.
15 O.A No. 180/00109/2021
15. In a rejoinder filed by the applicant, it is submitted that he had approached the Court of State Commissioner for Persons with Disabilities, who then issued the Annexure R-2 request to the 3 rd respondent to cancel the Movement Order due to his health reasons. The 3rd respondent by Annexure R-3 letter requested for a clarification from the 2nd respondent whether the salary could be released to the applicant. It was specifically pointed out in the letter that all those who had approached the CAT Bangalore challenging the transfer were paid salary. Thereupon vide Annexure R-4, it was intimated to the 2 nd respondent that salary for the month of May was paid to the applicant. The salary for subsequent months was also drawn and paid on the basis of Annexure R-5 order issued by the first respondent. From this sequence of events, it is crystal clear that the Department itself took a decision to draw and pay the salary to the applicant pursuant to a request made by the State Commissioner for Persons with Disabilities vide Annexure R-2 order. Thus, the stand of the respondents that salary drawn by the applicant during the period 05.04.2011 to 04.12.2011, should be recovered treating the same period as unauthorized absence is without any basis. It is submitted that the disbursal of pay and allowances for the said period was a conscious decision of the Department, pursuant to the Annexure R-2 letter issued by the State Commissioner for Persons with Disabilities. On the strength of the Annexure A-3 direction issued by the State Commissioner, the applicant continued at Bangalore and reported for duty everyday there. His salary was also paid to him and he was allowed to 16 O.A No. 180/00109/2021 continue to stay in the quarters allotted to him, located within the office premises. It is submitted that though he reported to the office for duty everyday he was not permitted to sign the attendance register or allowed to perform his duties in spite of the Annexure A-4 written submission made by him to the 3rd respondent. He could not perform his duties not due to any fault on his part but due to the adamant stand of the authorities who refused to give him any duties. He submits that as he went to office every day for duty and he was allowed to stay in the Government quarters within the office premises and also as the pay and allowances were paid to him as per the direction issued by the 1 st respondent, the contention of the respondents that he was unauthorizedly absent from duty was baseless. Thus, the period cannot be treated as dies-non and consequently no recovery can be made from the pay and allowances given to him during the said period.
16. The applicant further submits that he continued in Bangalore only on the strength of an order passed by a legal authority. There were no laches on his part. Since he was not allowed to perform his duty by authorities without any reason, the principles of 'no work no pay' are not applicable in the facts of the case. Further, there was no overdrawal of salary necessitating recovery of the same. He states that there was no occasion for the applicant to submit a leave application as he was never intended to go on leave at any point of time. He went to office everyday and it was only due to the illegal stand of the authorities that he could not perform his duties. The authority should have made sure that employees 17 O.A No. 180/00109/2021 like him were delegated work as salary was being paid to him in adherence to Annexure R-2 letter. Further, it is submitted that there is no clear answer given to his contention that in the case of other employees who were transferred along with him, who approached the Hon'ble CAT Bangalore Bench, the period of 8 months as in his case, was later regularized as on duty and all allowances and benefits were paid to them.
17. The applicant submits that it was never his contention that the post in which he was working was not transferable. He had only requested for continuation in Bangalore as he could not undertake long travel and was getting medical support at the Hosmat Hospital, which is a specialized orthopedic centre. Further, he submits that the departmental residential quarters at Chennai are located far from the office complex unlike the residential quarters located within the office premises at Bangalore. Thus, the authorities ought to have been taken a humanitarian approach in the matter of cancellation of his transfer to Chennai. He reiterates that it is the Department itself who allowed him to continue at Bangalore as per the request made by the State Commissioner for Persons with Disabilities. Thus he claims he was not unauthorizedly absent for the period from 06.04.2011 to 04.12.2011 and that such a charge has only been put on him to harass him at the fag end of his service. He submits that just because some other Surveyors approached the CAT Bangalore unlike him challenging their transfer, it does not make them incomparable to him simply on the ground that they are from a different cadre having different responsibilities. It is only in his matter that differential treatment is being 18 O.A No. 180/00109/2021 meted out as compared to them. All other similarly situated employees got the benefit only for the reason that they approached the CAT Bangalore, whereas he approached the State Commissioner for Persons with Disabilities. He submits that it is a wrong contention that the decisions issued as per Annexure A-9, A-10 and A-11 are in accordance with the FR/SR. The applicant was complying with the orders of State Commissioner for Persons with Disabilities just as much as the authorities also complied with the same and also paid him salary.
18. It is also submitted that the decision of the Hon'ble Supreme Court in Rafiq Masih, supra, is fully applicable in the facts and no recovery can done as being proposed in his case. The alleged over payment of salary during 2011 is being recovered in 2021 towards the fag end of his service. It is submitted that the directions issued by the State Commissioner for Persons with Disabilities as an interim measure were never challenged by the authorities. They chose to comply with the same finding that the grievance raised by him was genuine as he had serious health problems in connection with the amputation of his leg. He, therefore, did not disobey the orders of the competent authority as he was allowed to continue at Bangalore on the directions of the State Commissioner for Persons with Disabilities and the consequential orders issued by the respondents. The respondents have issued the impugned orders with only a few months left in his service and not after any finding after disciplinary proceedings about his guilt or otherwise. He submits that no disciplinary action was 19 O.A No. 180/00109/2021 initiated on his so called absence though the impugned orders have been issued. He submits that it is only in cases of absence of officials from duty without permission or when they refuse to perform their duties that the period can be treated as 'dies-non'. In his case, there is no instance of absence from duty without permission, nor had he refused to perform any of the duties assigned to him. In addition, he was paid salary for the entire period.
19. We have heard learned counsel for the applicant Shri Arun B. Varghese and learned counsel for the respondents, Shri Thomas Mathew Nellimoottil. We have also gone through the reply and rejoinder which have emphasised the points summarised above. As we noted earlier, the crux of the issue is whether the respondents have treated the period under consideration i.e., 06.04.2011 to 04.12.2011 correctly as a period of unauthorized absence under the proviso to FR 17(I). FR 17(1) reads as follows:-
F.R. 17(1)"Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties.
Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence....."(emphasis added) It is our finding from an appreciation of the facts of the case that it is difficult to draw a bare and simple conclusion as required under the proviso to FR 17(1) that the applicant was 'absent from duty without any authority.' We have described the sequence of events and relevant points 20 O.A No. 180/00109/2021 in detail earlier. It is indeed a fact that there was a movement order issued in his name to proceed to Chennai on 05.04.2011. However, as brought out, there were sufficient number of requests /(almost like directions) from the office of the State Commissioner for Persons with Disabilities beginning with the one produced by the respondents themselves at Annexure R-2 addressed the respondent No.3, the Director of the Karnataka Geo-Spatial Data Centre. By this letter a clear request was made to the Director, Karnataka GSPC to cancel the movement order to enable his treatment to be continued at Bangaluru. This was repeated in other letters issued by the State Commissioner which have been produced at Annexures A-3 and Annexure R-6, etc. Indeed, from the Annexure A-3 letter dated 05.05.2011, the State Commissioner also makes it clear that his office had not received any reply to all these requests. Further, the State Commissioner also issued requests to continue to make suitable arrangements for payment of the applicant's salary, as a special case, as in the case of other officials. We have not noted any action taken by the Director of the Karnataka Geo-Spatial Data Centre to contest or deny these requests, by clearly informing the Commissioner that the applicant had already been released and movement order issued. Nor was any action seemed to have been take to go to the Hon'ble High Court for vacating the orders of the Commissioner. Instead, all that seems to have been done by the Director, Karnataka Geo-Spatial Data Centre, Bangalore was to take the matter up with higher authorities for orders for the payment of salary. In response to this, the Surveyor General Office issued 21 O.A No. 180/00109/2021 the cryptic letter produced at Annexure R-5, that the salary may be drawn 'as per rules and admissibility'. It seems that there was no further correspondence after this and the applicant was quietly given salary month after month after an apparent 'request' of the State Commissioner for Persons with Disabilities and 'approval' of the Surveyor General of India's Office. There was no indication of any consideration of the latter day argument now being made that this was nothing but 'no work, no pay". The applicant was also allowed to occupy the quarter at Bangalore.
As observed, no work was allotted to him though the pay and other allowances were being given to him month after month. Hence, we can only conclude that the authorities did not take any serious steps to ensure that the applicant's movement to Chennai either as stated, by approaching the State Commissioner for Persons with Disabilities with any request or asking for directions from the appropriate Court or even contemplating starting disciplinary proceedings against him for his unauthorized stay in Bangalore after the movement order was issued. Thus, it is not beyond the realm of possibility to conclude, as has been submitted by the applicant, that both the authorities and he himself felt that they were bound by the request of the State Commissioner for Persons with Disabilities as an 'interim' direction in the matter, under the power of legal provisions. Of course, the Hon'ble High Court of Karnataka only later in its orders of 2018 clarified this position. Till then it could be quite possible to accept the argument made that there was an understanding on both sides of a 'stay' on the transfer.
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20. Further, it is relevant that even after he joined in March, 2019, at Chennai, no action was taken against him. He was allowed to continue there as if all was now normal. This continued until the issue of the impugned orders at Annexure A-9, A-10 after the so called proceedings vide Annexure A-11, which were steps taken as late as January/February, 2021, almost at the fag end of his service career. Hence, the contention that there was unauthorized absence at the cost of public money during the period 06.04.2011 to 04.12.2011 and that the applicant is covered under the FR 17 proviso and that the basic rule of 'no work, no pay' applies in the case does not appear to be justified in the facts and circumstances. The applicant, as well as the authorities, appear to have been under the impression as observed earlier, that the effect of the requests of the State Commissioner for Persons with Disabilities was like an interim direction or stay not to relieve or force the applicant to go to Chennai. To turn around full circle now and submit that he was absent without any authority seems to be a post facto realisation, when it was to be decided as to how the period was to be treated, after the directions of the Hon'ble High Court in W.P. © No. 12894/2012 that the Commissioner cannot pass any mandatory or prohibitory injunctions or interim orders were received. The applicant as well as authorities, therefore, seem to have operated under the impression that there was in interim order in operation in the case due to the letters issued by the State Commissioner for Persons with Disabilities, as produced at Annexure R-2 in the reply statement, and also reiterated by Annexure R-6 and Annexure A-3. 23 O.A No. 180/00109/2021
21. It also appears incongruous for the authorities to compare the case of the applicant only with Shri M. Balachennaiah, Draftsman Grade I, who had approached the Commissioner for SC/ST after issue of the said movement order, and who now appears to have who accepted the period of absence for 264 days being treated as 'dies-non' in his matter. On the face of it, differential treatment appears to be writ large in the case of the applicant if compared to the other group of gazetted Group B Officers/Office Surveyors who approached the CAT Bangalore Bench and got a status quo order, which was later upheld. However, as we have observed, even if that is not strictly comparable, the case of the applicant seems to stand in his favour on its own merit. We also note that it appears contradictory to mention in the very same reply statement that the delay in instituting the recovery in 2011 was due to the matter was being 'subjudice' in the Court of the State Commissioner for Persons with Disabilities and at the same time indicate later that there was no 'interim order' issued for the stay of the transfer order issued by the same State Commissioner. At this stage, however, we are not taking into consideration the alleged behavioural issues of the applicant, as these are not germane to the facts in this case.
22. Further, it appears to us that the matter is squarely covered by the judgement of the Hon'ble Supreme Court in the case of Rafiq Masih, supra. The Hon'ble Supreme Court had given this judgment in the context where orders of recovery were being made in two kinds of situations viz., where :-
24 O.A No. 180/00109/2021
(a) benefits went to the employees consequent upon a mistake committed by the Competent Authority in determining the emoluments payable to them, which could have been on account of a variety of reasons.
(b) the respondent employees were not guilty in furnishing information which had lead the Competent Authority to commit a mistake of drawing higher payment.
In such cases, it was ordered by the Hon'ble High Court, at para 12 of the said order, that while it was not possible to postulate all situations of hardship which would govern employees in the issue of recovery where payments were mistakenly made by the employer in excess of these entitlement, a few situations could be identified in which recoveries would be impermissible in law. They were:-
(i) Recovery from employees belonging to Class III and Class II employees or (Group 'C' and Group 'B' services).
(ii) Recovery from retired employees or employees who were due to retire within one year, of the order of recovery.
(iii) Recovery from employees where the excess payment has been made for a period in excess of five years before recovery is issued etc.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, though he should have rightfully been, required to work against an inferior post.
(v) In any other case, where Court arrives at a conclusion that recovery if made from the employee would be iniquitous or harsh or arbitrary to such an extent as would far outweigh the inequitable balance of the employer's right to recovery.25 O.A No. 180/00109/2021
23. In this matter, it is claimed that the salary and allowances were paid only due to the 'interim order' of the Court of the State Commissioner for Persons with Disabilities and the final order of the said Commissioner. This ignores the responsibility or absence of any action on the part of the respondents in not properly contesting these orders if they felt they were illegal in the appropriate Court or even representing to the Commissioner that such orders could not be implemented once the Movement order was issued. In our view, this amounts to a clear mistake on the part of the employer / respondents in continuing the salary payment if, as now, they find it illegal. The recovery is thus impacted by the conditions mentioned at para 12 of Rafiq Masih, supra. As per para 12(i), the applicant being a Group C employee at that time at the level of Draftsman Division-II should be excluded. Further, recovery is sought to be done within a period of year prior to his date of retirement and thus is affected by para 12 (ii). Recovery is also being made also when the apparent excess payment was made for a period of five years before the order of recovery was issued, which brings to effect condition at para 12(iii). Hence, the orders of the Hon'ble Supreme Court in Rafiq Masih, supra, appear squarely applicable in this matter.
24. In view of the above, we are not in a position to accept the arguments of the respondents that there was a deliberate unauthorized absence on the part of the applicant for the period, that the proviso to FR 17 is effected and thus that the period from 06.04.2011 to 04.12.2011 has to be treated as 'dies-non' as per the orders at Annexures A-9 and A-10. 26 O.A No. 180/00109/2021 We find that the respondents should either regularise this period as 'on duty for all purposes' and pay regular monetary benefits if any are due to the applicant, or, alternatively, treat the period by granting the appropriate leave to the applicant with the appropriate emoluments as due. In any case, we cannot agree to the treating of the period as 'dies non' for all purposes and not to be construed as interruption of break in service. We, therefore, set aside the orders at Annexure A-9 dated 01.02.2021 and Annexure A-10 dated 02.02.2021 as well as the letter addressed to the Respondent No. 2 from the Respondent No. 3 produced at Annexure A-11.
25. In light of our observations at para 24 above, the respondents are directed to issue orders in the matter for treating the said period appropriately. They may also issue orders regarding the pay and allowances to be paid to the applicant for the period. This may be done within a period of two months from the date of receipt of a copy of this order. The O.A is allowed to this extent. Further, there will be no orders as to costs.
(Dated, 13th January, 2022)
(K.V. EAPEN) (P. MADHAVAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax
27 O.A No. 180/00109/2021
Applicants' Annexures
Annexure A-1 - True copy of order No. C-693/8-C dated 05.04.2011
issued by the 3rd respondent.
Annexure A-2 - True copy of the medical certificate dated
27.04.2011 issued by Hosmat Hospital.
Annexure A-3 - True copy of the order dated 05.05.2011 issued by
the State Commissioner for Persons with
Disabilities.
Annexure A-4 - True copy of the letter dated 01.08.2011 submitted
by the applicant to the 3rd respondent.
Annexure A-5 - True copy of the salary slip of the applicant for the
month of July, 2011.
Annexure A-6 - True copy of the final order dated 18.11.2011 issued
by the Court of the State Commissioner for Persons
with Disabilities.
Annexure A-7 - True copy of the judgment dated 17.01.2018 in W.P.
No. 12894/2012.
Annexure A-8 - True copy of the order in O.A No. 1461/2018 dated
06.02.2019 passed by the Central Administrative
Tribunal, Bangalore Bench.
Annexure A-9 - True copy of the order dated 01.02.2021 issued by
the 2nd respondent.
Annexure A-10 - True copy of the order dated 02.02.2021 issued by
the 2nd respondent.
Annexure A-11 - True copy of the proceedings dated 27.01.2021
issued by the 3rd respondent.
Annexures of Respondents
Annexure R-1 - A true copy of the letter dated 01.04.2011.
Annexure R-2 - A true copy of the letter dated 20.04.2011.
Annexure R-3 - A true copy of the letter dated 03.06.2011.
Annexure R-4 - A true copy of the letter dated 20.06.2011.
Annexure R-5 - A true copy of the letter No. E1-10566/1466/D/Man
Div. I.
Annexure R-6 - A true copy of the letter dated 10.08.2011.
Annexure R-7 - A true copy of the letter dated 05.12.2011.
Annexure R-8 - A true copy of the letter dated 31.08.2018
Annexure R-9 - A true copy of the letter dated 21.02.2019
Annexure R-10 - A true copy of the letter dated 13.03.2019
Annexure R-11 - A true copy of the letter dated 18.03.2019
Annexure R-12 - A true copy of the letter dated 16.12.2019.
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