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2001 DIGILAW 1000 (AP)

Government Of A. P. v. M. Lava Kumar

2001-09-07

S.B.SINHA, V.V.S.RAO

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S. B. SINHA, C. J. ( 1 ) THIS writ petition arises out of an order dated 30-6-1999 passed by the State Administrative Tribunal in OA no. 5447 of 1996 whereby and whereunder the original application filed by the 1st respondent herein was allowed in part. ( 2 ) THE fact of the matter may be noticed thus: ( 3 ) THE 1st respondent was appointed as Attender in Zilla Parishad, Guntur on 21-12-1956 and promoted as Lower Division clerk on 15-4-1957. Thereafter he was promoted as Upper Division Clerk w. e. f. 19-10-1965 and his services in the said category were regularised from the said date. According to the 1st respondent, he applied for leave on 1-10-1971 on medical grounds and when he reported for duty during the month of August 1972, he was not permitted to join duty. He sent a letter by post on 16-8-1972 to the BDO, Macherla, but no posting order was given. The 1st respondent also claims to have made representations to Secretary, Zilla Parishad, guntur on 8-7-1973, 30-11-73 and to the District Development Officer, Zilla parishad on 18-7-1973, 5-8-1978, 15-6-1979, 11-8-1980, 1-10-1984 and 10-11-1984 and 25-11-1984. Inspite of the numerous representations made by the 1 st respondent, it is alleged that he was not given posting orders. Atlast by Memo No. 182283/84-A21 dated 12-10-1984, the 1st respondent was informed by the District Development officer stating that there was no recorded evidence to show that he applied for posting orders and sanction of leave in time and, therefore, he was directed to produce recorded evidence to his request for posting orders. ( 4 ) IT is alleged that the 1st respondent submitted his explanation on 5-11-1984 stating that he had not tried for posting orders between 15-5-1975 to 1-10-1984. Thereafter a detailed report was submitted to the Commissioner of Panchayat Raj stating that there was break in service for more than five years and recommended for issuing posting orders exempting him from the operation of FR 18 as a special case. The commissioner, however, rejected the representation of the 1st respondent, which was communicated to the 1st respondent on 12-6-1985. On the basis of the said orders, 1st respondent was dismissed from service w. e. f. 1-10-1971 under FR 18 treating him as having absconded from duty from 1-10-1971 by the proceedings of the Chief executive Officer dated 16-7-1985. The commissioner, however, rejected the representation of the 1st respondent, which was communicated to the 1st respondent on 12-6-1985. On the basis of the said orders, 1st respondent was dismissed from service w. e. f. 1-10-1971 under FR 18 treating him as having absconded from duty from 1-10-1971 by the proceedings of the Chief executive Officer dated 16-7-1985. ( 5 ) THE 1st respondent filed an appeal before the Government on 1-4-1987 and the government by order dated 31-5-1989 in g. O. Ms. No. 326, Panchayat Raj and Rural development (Estt. V) Department, dated 31-5-1989 allowed the appeal on the ground that the 1st respondent was removed from service without assigning proper reasons or following the procedure and directed the district Development Officer, Zilla Parishad, guntur to admit the 1st respondent to duty based on the applications submitted by him on 16-8-1972 and 17-7-1973 for posting orders and then to take disciplinary action against the individual under the CCA Rules and as per FR 18. Thereafter, the 1st respondent was issued posting orders as senior Assistant and allotted him to Mandal praja Parishad, Dacheppalli by proceedings dated 30-6-1989 where he joined duty on 1-7-1989 and he was allowed to draw in the minimum scale of pay applicable to the post of Senior Assistant. ( 6 ) 1st respondent has filed OA no. 45728 of 1990 before the Tribunal for continuity of service and for fixation of his pay on which the Tribunal by order dated 2-7-1993 directed the Government to examine the case of the 1st respondent for regularisation of service from 1-10-1971 to 30-6-1989 as per rules. The Government by Memo No. 55296/estt. V/a1/93-18 dated 21-8-1996 declined to regularise the period of absence and directed that the said period be treated as leave to which he is eligible. Aggrieved by the said orders, the 1st respondent filed the original application out of which the present writ petition arose. By the order impugned, the Tribunal directed to treat the period from which leave has not been granted i. e. , from 1-10-1971 till the order of termination dated 16-7-1985 as not on duty and the period from the date of removal from service to the date of reinstatement as on duty and to pass appropriate orders thereon expeditiously. By the order impugned, the Tribunal directed to treat the period from which leave has not been granted i. e. , from 1-10-1971 till the order of termination dated 16-7-1985 as not on duty and the period from the date of removal from service to the date of reinstatement as on duty and to pass appropriate orders thereon expeditiously. ( 7 ) THE learned Government Pleader submitted that having regard to the fact that the petitioner did not join his duties for a period of 13 years, the same should be treated as dies non . In this connection, our attention has been drawn to Rules 18 and 73 of the Fundamental Rules. ( 8 ) MR. Surender Rao, learned Counsel appearing on behalf of the respondents, on the other hand, submitted that the 1st respondent was dismissed from service on 16-7-1985 and he was permitted to join duty by an order dated 31-5-1989 having regard to the fact that he was not found to be at fault and that no disciplinary proceeding had been initiated against him. The learned Counsel would contend that as no disciplinary proceeding was initiated against him, despite the aforementioned order dated 31-5-1989, pursuant whereto the petitioner joined duty on 1-7-1989, he is entitled to get all the consequential benefits. The learned Counsel would further urge that it is not correct to say that the 1st respondent did not join his duties deliberately. According to the learned counsel, the Government Order itself would disclose that no order was passed on the application of the 1st respondent for grant of leave and/or his representations. ( 9 ) THE Tribunal by the order impugned directed: admittedly the applicant was absent unauthorisedly for sufficiently long number of years. There is no recorded evidence to show that he has applied for posting orders prior to 1984. His application dated 1-10-1984 alone is admitted by the respondents. The applicant himself admitted that he could not make any correspondence between 1975 to 1984 because of financial difficulties and troubles. Therefore, it is evidence that the applicant was deliberately and intentionally absent from duties without any reason, and, therefore, he could not get unauthorised absence period from 1-10-1971 to the date of removal order dated 16-7- 1985 as duty. The said period has to be treated as not on duty. Therefore, it is evidence that the applicant was deliberately and intentionally absent from duties without any reason, and, therefore, he could not get unauthorised absence period from 1-10-1971 to the date of removal order dated 16-7- 1985 as duty. The said period has to be treated as not on duty. As the applicant has been removed without any enquiry as required under APCS (CCA) Rules, and the said order has been set aside by the government in G. O. Ms. No. 326, dated 31-5-1989 the period i. e. , from the date of passing the removal order to the date of reinstatement into service from 16-7-1985 to 31-5-1989 has to be treated as duty. The impugned memo rejected the entire period as not on duty is not proper. The period from 1-10-1971 to 16-7-1985 for which leave has not been sanctioned should be treated as not on duty. In view of the facts and circumstances of the case and the discussion referred to above, the OA is partly allowed with as direction to the respondents to treat the period from which leave has not been granted 1-10-1971 till the termination order passed on 16-7-1985 as not on duty and the period from the date of removal from service to the date of reinstatement as on duty and pass appropriate orders thereon as expeditiously as possible preferably within a period of three months from the date of this order and release the consequential benefits to the applicant. ( 10 ) IT is not in dispute that no relief has been granted in favour of the 1st respondent for the period from 1-10-1971 to 15-7-1985. ( 11 ) THE 1st respondent was dismissed from service on 16-7-1985. He preferred an appeal thereagainst and the State Government by an order passed in G. O. Ms. No. 326, dated 31-5-1985, inter alia, noticed: the Government have examined the above representation of the individual with reference to the records of the District Development officer, Zilla Praja Parishad, Guntur rc. No. 18234/84 dated 16-7-1985 and the entries made in the Service Register of the individual. No. 326, dated 31-5-1985, inter alia, noticed: the Government have examined the above representation of the individual with reference to the records of the District Development officer, Zilla Praja Parishad, Guntur rc. No. 18234/84 dated 16-7-1985 and the entries made in the Service Register of the individual. It is evident from the entries made in Service Register and the records of the Zilla Praja Parishad that no action was taken by the Zilla Praja Parishad on the application of the individual for sanction of the medical leave with effect from 1-10-1971 and the application for posting orders submitted by the individual on 16-8-1972 and on 17-7-1973. Further, the District Development Officer, Zilla Praja parishad, Guntur has also not followed the cca Rules as per FR 18, before removing the petitioner after 14 years. He simply removed the individual without issue of any show-cause notice to the individual, on the basis of the orders issued by the commissioner of Panchayat Raj and Rural development in Memo. No. 499/e1/85-2, dated 25-5-1985 rejecting the appeal of the petitioner for reinstatement. The individual has also not approached the higher authorities personally during the last 13 years period, when he was not given posting orders after reporting for duty. However, the balance of convenience lies in favour of the individual as he does not appear to be at fault. In the aforementioned situation, it was directed: in the circumstances stated above, and as the individual does not appear to be at fault, the District Development Officer, zilla Praja Parishad, Guntur is requested to admit Sri M. Lava Kumar, Senior Assistant to duty based on the applications submitted by him on 6-8-1972 and 17-7-1973 for posting orders and then take disciplinary action against the individual under the CCA rules, as per FR 18, for his removal. ( 12 ) THE State Government, however, on a representation of the 1st respondent to the effect that the period of absence be treated on duty in terms of the order of the tribunal dated 2-7-1993 in OA No. 45128 of 1990, rejected the same by order dated 21-8-1996, the relevant portion thereof reads as follows: after careful examination of the case based on the reports of the Chief Executive officer, Zilla Parishad, Guntur and the commissioner, Panchayat Raj and Rural development, A. P. Hyderabad thereon, government feels that the decision on reinstatement of Sri M. Lava Kumar, Rtd. Senior Assistant, Zilla Parishad, Guntur itself was a compassionate decision and to treat the period during which he did not discharge any duty as duty will be unwarranted. Hence, the request of the individual to treat the period from 1-10-1971 to 30-6-1989 as duty is hereby rejected. However, the Chief Executive officer, Zilla Parishad, Guntur is requested to take necessary action for treating the period from 1-10-1971 to 30-6-1989 as leave to which he is eligible and as extraordinary leave. At this stage, we may notice Fundamental rule 18, which reads as follows: unless the Government in view of the exceptional circumstances of the case otherwise determine, no Government servant shall be granted leave of any kind for a continuous period exceeding five years. Note 1: Wilful absence from duty not covered by grant of any leave will be treated as dies- non for all purposes viz. , increment, leave and pension. FR 73, which deals with absence from duty after the expiry of leave, reads thus: a Government servant who remains absent after the end of his leave is entitled to no leave salary for the period of such absence, and that period will be debited against his leave account as though it were leave on half average pay, unless his leave is extended by the Government. Wilful absence from duty after the expiry of leave may be treated as misbehaviour for the purpose of rule 15. ( 13 ) HAVING regard to FR 18 quoted supra, there cannot be any doubt whatsoever that no Government employee shall be granted leave of any kind for a continuous period exceeding five years and that absence from duty not covered by grant of any leave shall be treated as dies-non for all purposes, namely, increments and pension. ( 14 ) THE submission of Sri Surender rao, learned Counsel appearing for the 1st respondent that the absence of the petitioner was not wilful cannot be accepted. The learned Tribunal has arrived at a finding of fact to the effect that the 1st respondent herein wilfully and deliberately had not reported to duty. In the aforementioned situation, Fundamental Rules 18 and 73 would squarely be attracted. The learned Tribunal has arrived at a finding of fact to the effect that the 1st respondent herein wilfully and deliberately had not reported to duty. In the aforementioned situation, Fundamental Rules 18 and 73 would squarely be attracted. ( 15 ) THE question, which, however, is required to be considered, is as to whether the services of the 1st respondent from the date of his dismissal till reinstatement should be treated as on duty or not. ( 16 ) IT is not in dispute that the 1st respondent filed a representation for giving him posting orders on 25-11-1984 and he was directed to be dismissed from service by the 2nd petitioner herein terms of his order dated 16-7-1985. No disciplinary proceeding as contemplated under FR. 73 was initiated. ( 17 ) THE State Government, in the aforementioned situation, thought it expedient to direct reinstatement of the 1st respondent with liberty to the authorities to initiate departmental proceedings. Despite the said liberty, no departmental proceeding was initiated and the 1st respondent was allowed to retire on 31-5-1992. The period of absence of the 1st respondent from the date of his dismissal to 16-7-1985 to the date of issuance of G. O. Ms. No. 326 being 31-5-1989 is for a period of less than five years. There cannot be any doubt whatsoever that the services of the 1st respondent had been wrongly terminated which is well reflected in the order of the Government dated 31-5- 1989. The 1st respondent, therefore, was directed to be reinstated into service by the order of the Government. In our opinion, interest of justice will be subserved if the period from 16-7-1985 when he was dismissed from service till the date of his appointment be treated as on duty. ( 18 ) FOR the reasons aforesaid, there is no merit in this writ petition, which is accordingly dismissed. No order as to costs.