Dushyant Singh vs Union Of India & Ors.

The applicant has filed the O.A under section 19 of the Administrative Tribunals Act, seeking the following relief(s): -

The brief facts of the case, as per pleadings in the O.A., are that the applicant vide an order dated 14.03.2005 was placed under suspension by the Respondent No.3 under Rule-10 (1) of CCS(CCA) Rules, 1965, on the ground that the disciplinary proceeding is pending against him. The applicant challenged the aforesaid order by filing an OA No. 639 of 2005 before this Hon'ble Tribunal. This Tribunal passed an order on dated 31.05.2005 staying the effect and operation of the aforesaid suspension order dated 14.03.2005. The applicant served the copy of aforesaid Order upon the respondents vide letter dated 01.06.2005. The applicant after availing the summer vacation reported himself for duty in person vide joining report dated 01.07.2005, which the respondents did not accept and as such the same was sent through registered post. However, he was not allowed to join his duties. Vide order dated 28.10.2005 passed by the Respondent No.3, the said suspension order was revoked. The aforesaid order of revocation of suspension dated 28.10.2005 was served upon the applicant by Respondent No.4 vide its covering letter dated 17.11.2005, which was delivered upon the applicant on 24.11.2005. The applicant was also served on the same day. an order dated 07.11.2005 passed by Respondent No.3 stipulating that the petitioner shall be paid full pay and allowances from the date of interim order i.e. 31.05.2005 instead of date of suspension order i.e. 14.03.2005. The aforesaid O. A. No.639 of 2005 filed by the applicant came to be allowed vide final Order dated 09.11.2005 quashing the aforesaid suspension order, entitling applicant to full pay and allowances for the period from 14.03.2005 onwards. The aforesaid Order of this Tribunal was served upon the respondents vide letter dated 16.12.2005. The respondents instead of complying the Order of this Tribunal, issued two letters dated 27.12.2005 and 29.12.2005. Both the aforesaid letters were delivered upon the applicant on 02.01.2006 wherein in the 1st letter they informed the applicant to join his duty with reference to letter dated 07.11.2005 issued by the respondent No. 3. The applicant vide representation dated 19.01.2006 prayed for compliance of the judgement and order passed by this Hon'ble Tribunal dated 09.11.2005. The respondents vide letter dated 21.02.2006 directed the applicant to join his duty with reference to its letter dated 28.10.2005. The applicant reported for joining the duty vide fresh joining report dated 14.03.2006 with reference to his earlier joining report dated 01.07.2005 and subsequent letters dated 16.12.2005, 04.01.2006 and 19.01.2006 respectively. Thereafter, on 23.03.2006, the respondent No. 3 observed that the applicant shall be allowed full pay and allowances from 14.03.2005 i.e. date of suspension order. After few days of joining, the respondents again transferred the applicant from Jaunpur to Kannauj vide order dated 29.03.2006, which was served on the applicant on 04.04.2006. Being aggrieved, the applicant filed O.A. No. 542/2006, in which this Tribunal passed an Order dated 12.01.2007 directing the respondents to maintain status quo under further orders. Thereafter, the respondent No. 3 vide order dated 19.07.2006 kept in abeyance the aforesaid transfer order. The applicant again reported for duty vide joining report dated 31.01.2007 and the respondent No. 4 allowed the applicant to join his duties w.e.f. 01.02.2007. The applicant joined his duty with effect from 01.02.2007 and has been discharging his duties with full devotion, as a result whereof he gave 100% result of his class. The respondents issued Memorandum of Show Cause dated 10.05.2007. The respondent No.3 issued an order dated 17.10.2007 treating the aforesaid period i.e. from 29.10.2005 to 31.01.2007 as break causing interruption in service, holding the applicant as having remained absent from duty wilfully during the said period and further holding applicant not entitled for full pay and allowances for the said period. The applicant against the aforesaid order submitted an appeal on dated 02.11.2007. However, the Appellate Authority i.e. Respondent No.2 passed an order (appellate order) dated 08.07.2008, rejecting the appeal of the applicant dated 02.11.2007 (treating the same as a representation) upholding the aforesaid orders of Respondent No.3. Aggrieved with the aforesaid orders of respondents, the applicant has filed the present O.A.

The respondents have filed the counter affidavit stating therein that vide order dated 14.03.2005, the applicant was put under suspension under sub rule (1) of Rule 10 of the CCS (CCA) Rules, 1965. The applicant challenged the suspension order by way of O.A. No. 639/2005 and this Tribunal stayed the operation of suspension order vide Order dated 31.05.2005. Thereafter, the competent authority vide order dated 28.10.2005 revoked the suspension order. After the stay order, the Applicant was required to immediately report for duty and formally assume charge, however, instead of doing so, he merely sent a letter dated 01.06.2005 through counsel seeking salary and chosen not to report during the intervening summer vacation, and subsequently forwarded a joining report dated 01.07.2005 by registered post without personally reporting. the suspension was revoked on 28.10.2005 and the Applicant was reposted to JNV, Mariahu. The suspension period from 14.03.2005 to 28.10.2005 was treated as "on duty" and full pay and allowances were released. Thereafter, the applicant was repeatedly directed to regularize his position through letters dated 17.11.2005, 21.11.2005, 27.12.2005 and 21.02.2006, followed by final opportunity memorandum dated 25.09.2006 and reminders dated 10.11.2006 and 19.01.2007, but he failed to comply. The applicant alleged visit to the Vidyalaya on 14.03.2006 is of no consequence, as the record shows that he neither completed the mandatory joining formalities nor waited for directions of the competent authority, and no attendance or formal assumption of charge is reflected on record. His subsequent representations to higher authorities also do not amount to lawful resumption of duty in service jurisprudence. Despite repeated opportunities given by the Samiti, the applicant failed to assume charge validly earlier and even after the final opportunity memorandum dated 25.09.2006 (received on 07.10.2006) and subsequent reminders dated 10.11.2006 and 19.01.2007, he submitted his joining in person only on 31.01.2007, whereupon he was permitted to assume charge w.e.f. 01.02.2007. Since the applicant remained unauthorizedly absent from 29.10.2005 to 31.01.2007, memo dated 10.05.2007 was issued and, after considering his reply, a reasoned order dated 17.10.2007 applying FR-17(1) was passed, which was affirmed in appeal on 08.07.2008. The respondents have submitted that no injustice has been done with the applicant hence, they have prayed for dismissal of the O.A.

Heard the learned counsel for the parties, perused the pleadings on record and considered the rival submissions made by counsel for the parties.

The subject matter of O.A. regarding challenging the impugned memorandum dated 10.05.2007 and subsequent order passed by the respondents’ authority dated 17.10.2007 and 08.07.2008 vide which the respondents’ department has declared the period from 29.10.2005 to 31.01.2007 as interruption/break in service under FR-17 sub rule (1) as well as Fundamental Rule 17-A sub rule (3). The submission of applicant that the said period is on account of pendency of O.A. before this Tribunal and after granting interim protection dated 31.05.2005 against the impugned order of suspension, in O.A. No. 639/2005, the O.A. was finally decided on 09.11.2005 with direction that the applicant is entitled to full pay and allowances for the period from 14.03.2005 onwards. From perusal of the impugned order as well as records of the case, it is apparent that after getting the interim order dated 31.05.2005, the said order was sent through his counsel vide letter dated 01.06.2005 (annexure A-6) addressed to Deputy Director, Navodaya Vidyalaya Samiti, Lucknow Region, Lucknow while the applicant was posted at Jawahar Navodaya Vidyalaya, Mariahu, Jaunpur and did not report for duty before the Principal of aforesaid Vidyalaya. Surprisingly, the applicant has annexed one letter dated 01.07.2005 vide which specific averment has been made in reference to order dated 31.05.2005, the applicant is rejoining the duty after availing summer vacation. However. the said letter was again sent vide registered post on 01.07.2005 to the Principal, Jawahar Navodaya Vidyalaya, Mariahu, Jaunpur as well as to Deputy Director, Navodaya Vidyalaya Samiti, Lucknow Region, Lucknow. Meanwhile, the suspension order of the applicant was revoked vide order dated 28.10.2005 by respondent No. 3, which was duly communicated to the applicant vide letter dated 17.11.2005. Subsequently, an observation was made by the respondents that from the date of suspension order till revocation order dated 28.10.2005, the applicant would be entitled for full pay and allowances from the date when the suspension order has been stayed. There is no dispute with regard to payment of said period. Thereafter, several other communications were sent to respondent No. 3 regarding joining on interim order. However, the applicant was again sent a letter dated 27.12.2005 to the Principal – respondent No. 4 regarding joining the duty and finally the applicant has joined his duties vide letter dated 31.01.2007. The relevant part of the same is quoted herein below: -

From the above letter, it is clear that applicant has given joining report on 31.01.2007 to the Principal, which was subsequently allowed on 01.02.2007.

Meanwhile another development took place as the applicant was transferred to Jawahar Navodaya Vidyalaya, Kannauj vide transfer order dated 09.03.2006, which was challenged before this Tribunal by way of O.A. No. 542/2006 and this Tribunal vide Order dated 12.01.2007 has protected the applicant by passing status quo order. The status quo order is quoted herein below: -

Therefore, from the aforesaid fact, it is evident that neither the applicant has actually joined his duty at Jawahar Navodaya Vidyalaya, Mariahu, Jaunpur nor he has worked there though numbers of litigations were filed not only with regard to transfer but, also against the disciplinary proceedings initiated against him. The relevant Fundamental Rule 17 (1) as well as Fundamental Rule 17 (A) (iii) are quoted herein below: -

The rule is very clear that absent from duty without any authority, the employee shall not be allowed to any pay and allowances during the period of such absence and further clarified under Fundamental Rule 17-A (iii) that such absence deemed to cause an interruption or break in service of the employee.

From the aforesaid facts as well as from the record, we are in considered opinion that the applicant did not join the duty at Jawahar Navodaya Vidyalaya, Mariahu, Jaunpur in spite of the fact that the order was served through his counsel to respondent No. 3 and not to Principal – respondent No. 4. He has taken suo moto leave of summer vacation and even after he had been made communication to respondent No. 3 in spite of Principal – respondent No. 4. Further from perusal of Order dated 12.01.2007 passed in O.A. No. 542/2006, the transfer order dated 09.03.2006 was considered by this Tribunal and the Tribunal directed to maintain the status quo, as on today. From the record, it is evident that he did not join the duty, therefore, such plea that by virtue of the interim order dated 12.01.2007 he did not join the duty, cannot benefited the applicant seeking quashing of impugned order vide which the period from 29.10.2005 to 31.01.2007 declared as interruption/break in service.

The applicant's contention regarding his rejoining duty vide letter dated 01.07.2005 after allegedly availing summer vacation is belied by the fact that he failed to physically report to his place of posting. Even after the revocation of the suspension order vide order dated 28.10.2005, which was duly communicated to the applicant on 17.11.2005, the applicant failed to report for duty and only joined as late as 31.01.2007.

From the facts available on record, it is evident that the applicant did not actually assume charge and discharge duties at Jawahar Navodaya Vidyalaya, Mariahu, Jaunpur pursuant to the transfer order. On the contrary, the record indicates that he remained away from duty and ultimately joined the said place only on 01.02.2007. Thus, mere pendency of litigation challenging the transfer order cannot, by itself, be treated as equivalent to actual discharge of duties or as conferring authority upon the applicant to remain absent from duty.

The reliance placed by the applicant upon the interim order dated 12.01.2007 passed in O.A. No. 542/2006 is also misplaced. By the said order, the Tribunal directed the parties to maintain status quo as obtaining on that date. The said interim order neither granted any permission to the applicant to remain absent from duty nor authorized him to refrain from joining or discharging his duties. An interim order directing maintenance of status quo cannot be construed as an order granting leave or otherwise regularizing an absence which was unauthorised in law. In any event, the said order was passed only on 12.01.2007 and, therefore, cannot retrospectively validate the applicant’s absence from 29.10.2005 to 12.01.2007.

The position becomes further clear from the provisions of Fundamental Rule 17(1), which provide that an officer shall draw pay and allowances attached to the tenure of a post with effect from the date on which he assumes the duties of that post and shall cease to draw the same when he ceases to discharge such duties. The proviso further stipulates that an officer who is absent from duty without authority shall not be entitled to pay and allowances during the period of such absence.

Further, Fundamental Rule 17-A (iii) specifically provides that, in the case of an individual employee remaining absent unauthorizedly or deserting the post, such absence shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the limited purposes specified therein. Thus, unauthorised absence has a distinct consequence in service law and cannot be converted into a period of duty merely on account of the pendency of proceedings relating to the transfer order.

In the present case, the applicant has not been able to demonstrate that, during the period in question, he had either actually discharged duties at the transferred place or had obtained any lawful order of the competent authority permitting him to remain away from duty. The fact that several proceedings were instituted by him challenging the transfer and subsequent disciplinary action does not, by itself, establish that his absence from duty was authorized. Litigation against a transfer order and lawful assumption of duty are two distinct matters.

The applicant’s further contention that, in view of the interim order dated 12.01.2007 in O.A. No. 542/2006, he could not be treated as having failed to join duty, also cannot be accepted. The order of status quo did not retrospectively regularise the period preceding 12.01.2007, nor did it confer upon the applicant any right to remain absent without obtaining appropriate permission or leave. Moreover, the record shows that the applicant actually joined duty only on 01.02.2007. Therefore, the period up to 31.01.2007 cannot be treated as a period during which the applicant was on authorized duty merely because an interim order had been passed on 12.01.2007. It is also significant that the applicant has not placed on record any subsequent order whereby the competent authority specifically regularised the intervening period as duty or otherwise condoned the absence for the purposes contemplated under F.R. 17-A. In the absence of any such order, the statutory consequences flowing from unauthorised absence cannot be avoided merely by referring to the pendency of judicial proceedings.

In these circumstances, we find no infirmity in the impugned orders dated 10.05.2007 and 17.10.2007 treating the period from 29.10.2005 to 31.01.2007 as interruption/break in service, particularly when the applicant admittedly did not join duty during the said period and there was no order of the competent authority authorizing such absence. The interim order dated 12.01.2007 does not alter this position. Consequently, the challenge to the impugned orders dated 10.05.2007 and 17.10.2007 is devoid of merit. The applicant cannot derive any benefit from the interim order dated 12.01.2007 passed in O.A. No. 542 of 2006 or from the Order dated 31.05.2005 in O.A. No. 639 of 2005 so as to retrospectively legitimize the period of unauthorized absence preceding that order. The O.A. therefore deserves to be dismissed.

In view of the above discussion, the O.A. is dismissed. No order as to cost. All the pending MAs shall be deemed to have been disposed of.