S.P. Bahuguna vs Union Of India & Ors

Rajiv Joshi, Member (J)

Heard Mr. Sunil, learned counsel for the applicant and Shri Subash Chandra Mishra, learned counsel for the respondents at the time of hearing.

The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:

I. To quash the order dated 08.02.2016 and 18.03.2016 passed by respondent-3.

II. To direct the respondents to treat the applicant's service from initial appointment as continuous till the date of retirement with all consequential benefits.

III. Any other order or direction to which this Hon'ble court may deem fit and proper in the facts and circumstances of the case.

IV. Award the cost of the petition to this applicant.

The brief facts as apparent from the record of Original Application are that the applicant was initially appointed as stenographer on 27.11.1979. Subsequently, he was promoted as stenographer grade-II on 11.05.1999. In 1998, all of sudden, he fell seriously ill due to blood circulation in right side body resulting into insensitiveness and the applicant had remained in unhealthy condition due to the said panic decease.

3.1 The treating doctors advised him that the disease is not of short term nature and the same requires intensive care and treatment. The said situation completed the applicant to undergo an unhealthy physical and mental instability with the feeling of being handicapped in future. When the applicant recovered from the aforesaid ailment, he submitted his medical certificates and leave application vide a letter dated 02.11.2001.

3.2 Again the applicant fell ill due to which he could not attend the office w.e.f. 01.01.2005 to 09.01.2013. The applicant joined his duty on 23.01.2013 on verbal assurance of the respondents. Subsequently, the respondents vide letter dated 22.10.2014 directed the applicant to attend medical board at Saharanpur on any Friday.

3.3 In pursuance to the aforesaid letter, the applicant attended the medical board proceeding on 26.06.2015 and medical board after passing necessary fitness order, sent medical report to the respondents. According to the respondents, in respect of absence from duty a show cause notice dated 23.12.2015 was sent to the applicant, but the same was not received by him. Surprisingly, the respondents passed an order dated 08.02.2016 and 18.03.2016 invoking rule FR-17A, by which the said period of absence was treated as interruption and break in service, which are impugned in this original application.

3.4 The respondent-2 vide letter dated 23.03.2016 directed the applicant to submit necessary papers with regard to pension. However, on 29.03.2016, again a show cause notice dated 29.03.2016 was issued to the applicant for recovery of salary paid during the service break period. Having aggrieved with the aforesaid action of the respondents, the applicant submitted a detailed representation dated 16.04.2016, followed by reminders, but no heed was paid. Hence, this Original Application has been filed.

On the other hand, counter affidavit has been filed from the side of the respondents on 29.10.2018, wherein it has been stated that the applicant remained unauthorizedly absent from duty during the period 20.11.1998 to 08.10.2001 and 01.04.2004 to 24.08.2015. His attendance was also intermittent. Thereafter, he joined the office on 25.08.2015 and attended only till 18.09.2015 and he did not attend the office from 19.09.2015 till his superannuation. A show cause notice was issued to the applicant on 23.12.2015 (through speed post), which was never received back, meaning thereby show cause notice was served to him. Since the applicant repeatedly remained absent from duty without taking requisite permission, the period of absence i.e. 20.11.1998 to 08.10.2001 and 01.04.2004 to 24.08.2015 were treated as interruption and break in service under FR 17 A. Therefore, an order in this regard has been passed by the respondent.

4.1 Since the applicant was continuously absent from duty without taking requisite permission w.e.f. 19.09.2015 till his superannuation, a show cause notice was issued on 01.03.2016 through speed post, but the applicant did not file any reply. Hence, the order dated 18.03.2016 has been passed under FR 17-A. The applicant was not eligible for pension and gratuity. Hence, Original Application is liable to be dismissed.

In reply, rejoinder affidavit has been filed by the applicant on 05.12.2018, wherein, reiterating the averments as made in Original Application.

Mr. Sunil, learned counsel for the applicant assailed the impugned orders on the ground that the respondents are illegally and arbitrarily treating the period in question as interruption and break in service under FR 17-A. The leave of absence from duty is neither the intentional nor the deliberately as it is compelling circumstances, he was absent from duty due to illness.

6.1 Learned counsel for the applicant further submitted that the impugned orders were passed without giving reasonable/sufficient opportunity to the applicant. Until and unless, it is proved that the absent was willful, rule FR 17A would not be applicable. The appeal was also filed by the applicant with regard to his joining, but no heed paid by the respondents as yet. The applicant attended office w.e.f 19.09.2015 till his superannuation, but he was not permitted to make signature for attendance.

6.2 Learned counsel for the applicant further submitted that the impugned orders are penal in nature and the order directing to treat the period of absences as interruption is not sustainable in the eyes of law in the absence of reasonable opportunity of being heard. The applicant was neither placed under suspension, nor any disciplinary proceeding been initiated against him for alleged unauthorized period.

6.3 He further submitted that before passing of the impugned orders, neither charge sheet was issued/served upon the applicant nor departmental inquiry was initiated against the applicant and as such, impugned orders are liable to be quashed and set aside.

Per contra, Shri Subhash Chandra Mishra, learned counsel for the respondents opposed the contention of the learned counsel for the applicant and submitted that there is no illegality or infirmity in the impugned orders as the respondents have considering each and every aspect of the matter, while passing the impugned orders. The applicant had remained unauthorizedly absent from duty for long spells, i.e., from 20.11.1998 to 08.10.2001 and from 01.04.2004 to 24.08.2015. Despite joining on 25.08.2015, the applicant worked only up to 18.09.2015 and again absented himself from 19.09.2015 till the date of his superannuation, without any sanctioned leave or prior permission from the competent authority.

7.1 Learned counsel for the respondents further submitted that show cause notices were duly issued to the applicant from time to time through speed post, which were not received back, and therefore, it is presumed that the same were duly served upon him. However, the applicant failed to submit any reply or justification for his prolonged absence. In view of continuous and unauthorized absence, the respondents were left with no option but to invoke the provisions of FR 17-A and treat the said period as interruption and break in service.

7.2 It was also contended that the action of the respondents is purely administrative in nature and not penal, and therefore, no formal departmental inquiry or issuance of charge-sheet was required under the rules. Hence, the Original Application is devoid of merit and is liable to be dismissed.

We have considered the submissions so raised by the learned counsel for both the parties and perused the records.

It reflects from the record that the respondents have treated the period of absence of the applicant as interruption and break in service by invoking the provisions of FR 17-A by the impugned orders. For better appreciation of the matter, FR 17 is quoted as under:-

F.R. 17-A. Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972, a period of an unauthorized absence-

(i) in the case of employees working in industrial establishments, during a strike which has been declared illegal under the provisions of the Industrial Disputes Act, 1947, or any other law for the time being in force;

(ii) in the case of other employees as a result of action in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of the competent authority; and

(iii) in the case of an individual employee, remaining absent unauthorizedly or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in departmental examinations, for which a minimum period of continuous service is required.

EXPLANATION 1.-For purposes of this rule, "strike" includes a general, token, sympathetic or any similar strike, and also participation in a bandh or in similar activities.

Admittedly, the applicant had remained absent from duty for the period in question and no sanctioned leave was granted by the competent authority for the aforesaid periods of absence. Although the applicant has attempted to justify such prolonged absence on medical grounds by contending that he was suffering from serious ailments and was under treatment, however, no cogent material has been brought on record to establish that the prolonged absence extending over several years was ever duly sanctioned or regularized in accordance with the applicable service rules. Mere submission of application/representation after absence from duty for years together cannot automatically entitle an employee to claim continuity of service or compel the department to treat the entire period as duty. The applicant was issued show cause notice prior to issuance of impugned order and as such, a reasonable opportunity was granted to the applicant before invoking the provisions of FR 17-A.

It is settled that an employee holding a public post is duty bound to obtain prior permission or sanctioned leave from the competent authority and prolonged unauthorized absence cannot be condoned merely on sympathetic considerations. The Supreme Court in the matter of State of Punjab Vs. Dr. P.L. Singla, reported in 2008(8) SCC 469 has held:

"11. Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorized absence as a misconduct, hold an enquiry and impose a punishment for the misconduct.

An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sanctioning leave, reserved the right to take disciplinary action in regard to the act of indiscipline.

We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of days overstay is viewed very seriously. Be that as it may.

Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend.

The Supreme court in the above judgment has made it clear that in the case of unauthorized absence if in a departmental enquiry the punishment does not result in severance of employment meaning thereby any punishment lesser than the punishment of dismissal or removal or compulsory retirement is imposed than a consequential order as to how the period of absence is to be accounted for and dealt with in service record is to be passed since absence of such an order results in break in service effecting seniority, pay etc. and such a consequential order is an accounting and administrative procedure which does not effect or supersede order of punishment. Hence order of treating the period of absence as dies non is only an accounting and administrative procedure to avoid break in service and it can not be treated to be punitive order. It is also worth noting that order of dies non/break in service is partly in favour of the employee concerned.

Further, the plea of the applicant that his absence was neither intentional nor willful also does not merit acceptance in the facts of the present case. Even assuming that the applicant was suffering from illness, it was incumbent upon him to keep the department informed from time to time and obtain leave duly sanctioned in accordance with rules. However, the applicant failed to place any material on record showing that the competent authority had ever sanctioned leave for the periods in question. On the contrary, the record demonstrates that the applicant remained continuously absent without authorization and failed to discharge his official duties for years together. Such prolonged absence without approval of the competent authority amounts to grave misconduct and cannot be regularized as a matter of right.

The contention of the learned counsel for the applicant that the impugned orders are punitive in nature and could not have been passed without issuance of charge-sheet or conducting departmental inquiry is also misconceived. In the present matter, the respondents have merely exercised powers under FR 17-A for regulating the service consequences arising out of unauthorized absence and for treating the period in question as interruption and break in service. The respondents have not imposed any major penalty under the disciplinary rules so as to necessitate holding of a regular departmental inquiry. Action under FR 17- A is administrative in nature and intended to regulate the service status of an employee who remained absent without authorization. Therefore, non- initiation of disciplinary proceedings does not render the impugned orders illegal or arbitrary. In view of the binding precedent of the Supreme court in the matter of Dr. P.L. Singla (supra), the plea of counsel for applicant to treat the order of break in service as stigmatic and punitive order is not acceptable. Hence the order dated 8/1/2007 treating the period as dies non does not suffer from any error.

In view of the above discussion, no interference is warranted in the instant case as there is no illegality or infirmity in the impugned order. Resultantly, instant original Application stands dismissed.

16 All MAs pending in this O.A. also stand disposed off.

No order as to costs.