Bishu Kumar Debnath vs State Of Tripura And Ors

Heard Mr. PK Pal, learned counsel appearing for the petitioner as well as Mr. M Debbarma, learned Addl. GA appearing for the respondents.

There is no dispute that the petitioner, who is working as the Graduate teacher at Rabi Kumar High School, Lembucherra, was absent from his duty during the period from 23.08.2014 to 10.08.2015. Prior to that period of absence, the petitioner was transferred to Shetuduwar S.B. School, Kanchanpur and he was released w.e.f. 23.08.2014 by the notification dated 07.08.2014 (Annexure-1 to the writ petition).

The petitioner has raised the plea that he was suffering from critical ailments and he was advised by the doctor to be confined to bed rest, and according to the said advice, he was absent from duty from 23.08.2014. Thereafter, the petitioner had resumed his duties on 11.08.2015 on furnishing the medical certificates of illness and fitness but his prayer for commuted leave for the said period of absence i.e. 353 days was turned down by the competent authority, Director of School Education, Government of Tripura.

Before the rejection, the petitioner was asked to appear before the Standing Medical Board and accordingly, the petitioner appeared before the Standing Medical Board. The standing Medical Board has clearly opined as follows:

"After careful examination of all the documents submitted by Sri Debnath, it is found that his 353 (three hundred fifty three) days earned leave on medical ground w.e.f. 23.08.2014 to 10.08.2015 is not justified as there is no sufficient supporting documents."

Having received the said opinion from the Standing Medical Board, initially the petitioner was asked to show cause by the memorandum under No.F.4(8-West-MISC)SE/E(Trg.) /2012(Vol-III) dated 08.02.2016 (Annexure-9 to the writ petition) as to why the period of absence w.e.f. 23.08.2014 to 10.08.2015 shall not be treated as dies-non for all purposes, i.e. pension, increment, leave etc. without forfeiture of his past service and also why disciplinary action should not be taken against him for his unauthorized absence from duty.

The petitioner filed his reply on 01.08.2016 stating, inter alia, that he was not furnished with the report of the Standing Medical Board and as such, he is not in the know, what reason they have assigned for their dissatisfaction. He has urged that the period of absence be regularized on granting him commuted leave on medical ground.

Having considered the said reply, by the memorandum No. F.4(8-West-MISC)-SE/E(Trg.)/2015(Vol-III) dated 02.08.2017 (Annexure-11 to the reply) the Director of Secondary Education, Government of Tripura, Agartala has ordered that the period of absence w.e.f. 23.08.2014 to 10.08.2015 (353 days) be treated as dies-non for all purposes (i.e. pension, leave, increment, etc) and that will not, however, entail forfeiture of his past services prior to 23.08.2014.

The petitioner, thereafter, filed a prayer for review of the said order on 18.08.2017 primarily contending that the opinion of the Medical Board does not have any binding effect on the discretion of the competent authority. Moreover, the genuineness of the medical certificate of illness and fitness have not been questioned by the Medical Board and as such, those cannot be discarded with a stroke of a pen. By the memorandum No. F.4(8-West-MISC)-SE/E(Trg.)/2015(Vol-III) dated 14.11.2017 (Annexure-13 to the writ petition) the said prayer for review was rejected.

Mr. Pal, learned counsel appearing for the petitioner has succinctly submitted that the petitioner has been clearly denied of reasonable opportunity in respect of his defence. In support of his contention, he has relied on a decision of this court in Santosh Debnath vs. State of Tripura [judgment and order dated 12.01.2017 delivered in WP(C) No. 276/2016] where this court had occasion to observe, inter alia as under:

"7. Be that as it may, this court is of the opinion that it was incumbent on the respondents to start a disciplinary proceeding against the petitioner on unauthorized absence and thereafter to pass an appropriate order. As already stated, though dies non is not cataloged as the punishment under Rule 11 of the CCS (CCA) Rules, 1965 but for the very nature of the order of dies non, it appears that it carries the streak of punishment. The respondents cannot without disciplinary proceeding pass any order which is seriously prejudicial to the interest of an employee. The petitioner has been subjected to such arbitrariness inasmuch as he did not get any opportunity to safeguard him from the allegation. Thus, the impugned orders dated 05.08.2015 and 18.09.2015 are interfered with and set aside. But this court is not inclined to exonerate the petitioner from the allegation down the line. Regularization of absence by leave falls in the executive domain.

In this context, the respondents are permitted to take appropriate action if required against the petitioner but that action can only be taken after instituting a departmental proceeding after affording the petitioner reasonable opportunity for his defence. If within 3 (three) months from today no disciplinary action as indicated above, is taken, the respondents shall regularize the absence of the petitioner by the credited leave or other leave."

Having placed his reliance on that observation, Mr. Pal, learned counsel has submitted that the petitioner is entitled to get an opportunity to safeguard his right and consideration for regularization of his absence by commuted leave. In this regard Mr. Pal, learned counsel has referred to FR 17A which provides that:

"Without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules, 1972 [the corresponding Rule 24 of Tripura Civil Services (Leave) Rules 1986] a period of 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 a 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 his 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 disserting 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 the leave travel concession, quasi-permanency and eligibility for appearing in the departmental examinations, for which a minimum period of continuous service is required."

According to Mr. Pal, learned counsel to take such punitive action the reasonable opportunity as envisaged under Article 311(2) of the Constitution of India has to be afforded.

Mr. Debbarma, learned Addl. GA, however, has submitted that a Government employee who was unauthorizedly absent from his duty is not entitled to pay and allowances. As such, the petitioner, as a matter of right, cannot claim his pay and allowances when the competent authority has denied to allow the absence to be regularized by the credited leave.

That apart, Mr. Debbarma, learned Addl. GA has referred to the memorandum No.F.3(4)-DSE/79(L-1) dated 13.06.1990 (Annexure-R8) issued by the Director of School Education. By the said memorandum, a clarification has been made regarding grant of commuted leave without production of medical certificate for a period not exceeding 3(three) days at a time. For purpose of reference, the relevant text of the said memorandum dated 13.06.1990 is extracted hereunder:

"It is informed that questions were raised by some Heads of Institutions/Offices whether the provision of rule 18(6) of TSCS (Leave) Rules, 1986 regarding waiving of production of medical certificate in case of grant of leave up to a period of 3 days at a time is applicable in respect of grant of commuted leave for those days. The matter has been examined and is hereby clarified that commuted leave cannot be granted without medical certificate.

This is issued with the concurrence of the Govt. of Tripura Finance Department U.O. No.2314/Fin (G)/90 dated 31.05.1990.

Sd/---

( S.B. Biswas)

Director of School Education Tripura."

According to Mr. Debbarma, the petitioner did not submit any medical certificate within the prescribed period to entitle himself to the commuted leave. Thus, his absence was totally unauthorized and completely in contrast to the memorandum dated 13.06.1990. Therefore, his prayer for the commuted leave on medical ground has been rightly rejected.

Further, Mr. Debbarma, learned Addl. GA has contended that the opportunity has been given to the petitioner by way of issuing a show cause notice but the petitioner did not deal with the said show cause notice on the pretext, that he did not get the report of the Standing Medical Board. According to Mr. Debbarma, the petitioner had never asked for supplying the report of the Standing Medical Board to the Director of School Education, Government of Tripura who have finally passed the impugned memorandum dated 02.08.2017 (Annexure-11 to the writ petition). Therefore, this writ petition merits no further consideration.

Mr. Debbarma, learned Addl. GA has also drawn attention of this court to a clarificatory memorandum under No.F.3(9)-GA(AR)/2005 dated 02.03.2007 in respect of unauthorized absence. The relevant part of the memorandum reads as follows:

"Whether an employee may be allowed to join duty after long unauthorized absence from duty? In response to this query it has been explained that, there is no bar to the joining of duty by an employee who wants to resume duty after his unauthorized absence. However, as per Leave Rules the competent authority is at liberty to take the following courses of action:-

a. to initiate disciplinary proceeding against the employee who remained absent from duty unauthorisedly; or

b. to declare under FR. 17 the period of unauthorized absence of the employee as "dies-non" without break in Service or to declare under FR-17A the period of unauthorized absence of the employee as "Dies-non" with break in service; Provided that action under Section FR 17A has to be taken giving the employee concerned an opportunity of being heard."

This court has serious reservation in respect of the proposition under Clause (b) inasmuch as FR 17 does not provide any scope to the competent authority to declare the unauthorized absence of the employee dies-non without break in service. FR 17 is a provision whereby it has been provided that the employee is not entitled to pay and allowances for the period of absence which has not been authorized by the competent authority. Be that as it may, for those events as explained in the memorandum dated 02.03.2007 the employee concerned has to be given a reasonable opportunity of being heard.

Whether the show cause notice was a sufficient opportunity for the employee or not is the moot question that has to be determined in this writ petition. From a reading of the reply filed by the petitioner, it appears that the petitioner expressed his helplessness that he was not in a position to give the comprehensive reply, as he was not supplied with a copy of the response of the Standing Medical Board. He had also urged to grant him the commuted leave on medical ground. But on the basis of such purported reply, the final order contained in the memorandum dated 02.08.2017 (Annexure-11 to the writ petition) has been passed.

This court, having taken a liberal view of the matter and the disability that the petitioner had at the point of making the reply suffered, is of the view that the impugned order be interfered with and set aside but not on merit, but only to pave the way for giving the petitioner a reasonable opportunity to lay his defense whatsoever.

For this purpose, the matter is remitted to the competent authority who will provide opportunity under FR 17A to the petitioner so that the petitioner can lay his defence against the proposed action as contemplated in the memorandum dated 08.02.2016 (Annexure-9 to the writ petition).

After the petitioner submits his reply to the said show cause notice dated 08.02.2018, the competent authority would be at liberty either to decide the case on the basis of such reply or to put the case for departmental inquiry, and thereafter, to take the appropriate action or to pass the order of exoneration on appreciation of reasons so put forward by the petitioner.

Having observed thus, this writ petition is allowed to the extent as indicated above. The petitioner shall furnish a copy of this order to the Director of Secondary Education within a period of 15 days from today and the appropriate action in terms hereof will be taken by the Director of Secondary Education, the respondent No.2 within a period of 30 days.

It is expected that necessary order would be passed within a reasonable time so that the petitioner does not suffer more. The release of any financial benefit would depend on the final order.

A copy of this order be furnished to Mr. M Debbarama, learned Addl. GA appearing for the respondents.

No order as to costs.