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2012 DIGILAW 2895 (MAD)

M. Kalivaradhan v. State of Tamil Nadu

2012-07-09

VINOD K.SHARMA

body2012
Judgment :- 1. The petitioner was appointed as Field Demonstration Officer on 29.03.1966 and promoted as Assistant Agriculture Officer on 16.11.1981. The petitioner retired from service on 30.06.2002. 2. While the petitioner was working with the respondent department, he was diagnosed as he was suffering from Tuberculosis (TB). Therefore, petitioner availed long spell of leave for treatment. The petitioner was sanctioned leave by the department in two spell; i.e. 540 days and 493 days between 1995 and 1997. 3. It is the submission of the petitioner, that as per Fundamental Rules and the Government instructions, a person suffering from Tuberculosis (TB) is entitled for leave above 18 months at a time, without any restriction or reference to medical board. 4. It is the submission of the petitioner that though competent authority sanctioned, the leave availed by the petitioner, the impugned order dated 8.4.2002 was passed by the respondent No.3, directing the reguarisation of the leave period as directed. 5. The order dated 04.04.2002 passed by the respondent No.3 reads as under: "Thiru M.Kalivaradhan, Asst. Agriculture Officer while working in the office of Agricultural Development Officer, Manampoondi, Paranur, by this office proceedings No.5820/95 was sanctioned 540 days of Special Tuberculosis leave from 13.10.1995 to 08.06.1996 and 10.06.1996 to 18.04.1997. State Trading Scheme Audit report 96-97 referred in reference-1 it has been informed that the leave sanctioned to him need to be regularized properly and revised orders are accordingly issued. Therefore, 493 days of exceeded leave apart from the 540 days of Medical Leave availed by him has been regularized as mentioned below to his credit (as on 04.11.2001) and amended order are issued accordingly. S.No. Details No.of days 1. Earned leave to the credit as on 01.01.2001 212 days 2. Unearned leave on Private affairs 180 days 3. Leave on Loss of Pay 101 days Total 493 days sd/-Assistant Director of Agriculture Thirukovilur" 6. In pursuance to the order passed to regularise the leave availed by the petitioner while releasing the retiral benefits, the respondent No.3 withheld the amount paid in excess to the petitioner by sanctioning leave over and above the permissible leave on full pay. 7. The learned counsel for the petitioner contends that the impugned order cannot be sustained in law on the following grounds: (i) That the impugned order affecting the civil rights of the petitioner has been passed, without issuing show cause notice to the petitioner. 7. The learned counsel for the petitioner contends that the impugned order cannot be sustained in law on the following grounds: (i) That the impugned order affecting the civil rights of the petitioner has been passed, without issuing show cause notice to the petitioner. (ii) Once competent authority on applying rule 28-A, had granted the leave salary on the basis of medical certificate, it was not open to review the decision on the directions of the audit. (iii) That the impugned order has been passed by misinterpreting Rule 28-A of Annexure III of Fundamental Rules regarding leave salary. 8. Rule 28-A on which reliance is placed by the petitioner reads as under: 28.A Government servant in superior service— (a) While on earned leave, or on unearned leave on medical certificate is entitled to leavesalary equal to his pay; (b) While on leave on private affairs is entitled to leave-salary equal to half pay. [G.O. Ms. No. 807, Finance (F.R.I.), dated 24th July 1976.] (c) While on extraordinary leave, is not entitled to any leave." 9. Whereas Rule 23 of Annexure III of Fundamental Rules reads as under: 23. “(a) A non-permanent Government servant in superior service may also be granted— (i) if he has completed two years of regular service, leave on medical certificate for not exceeding one hundred and eighty days in all, subject to the restriction of ninety days for the first five years of service which may be carried forward beyond five years of service. “(a) A non-permanent Government servant in superior service may also be granted— (i) if he has completed two years of regular service, leave on medical certificate for not exceeding one hundred and eighty days in all, subject to the restriction of ninety days for the first five years of service which may be carried forward beyond five years of service. (ii) Extraordinary leave not exceeding six months at any one time: Provided that the leave for a longer period of twenty four months may be granted to a Government servant, if he has been in continuous service for a period exceeding one year and if he is undergoing treatment for tuberculosis or leprosy in a recognised Sanatorium or suffering from pulmonary tuberculosis and undergoing treatment at his residence under the care of tuberculosis or leprosy specialist, as the case may be recognised as such by the state Administrative Medical Officer concerned and produces a certificate signed by that Specialist and that he has reasonable chances of recovery on the expiry of the leave recommended: Provided further that the period of absence exceeding the period of eligible leave under clause (ii) may be treated as “non-duty” in cases where exceptional circumstances exist which rule out the possibility of relaxation of this rule or removal from service as provided in General Rule 10 (a) (v) in Part-II of the Tamil Nadu State and Subordinate Services Rules or removal from service under the Tamil Nadu Civil Services Classification, Centor and Appeal as the case may be. Such absence without leave shall constitute an interruption of service and the past service shall not count for the purpose of leave. The leave earned prior to such absence shall also lapse. (iii) “There shall be an interval of a period of three years between two spells of the maximum leave so granted”.[G.O. Ms. No. 478, P. & A.R. (FR. Spl.) Dept., dated the 21st November 1990.] (w.e.f. 13th November 1987) (b) A non-permanent Government servant in basic service may be granted extraordinary leave as in clause (ii) of sub-rule (a). (c) A non-permanent Government servant in basic service, who has completed one year’s continuous service, may be granted leave on medical certificate for a maximum period calculated at ten days for every completed year of his service less the amount of leave taken under this rule. (c) A non-permanent Government servant in basic service, who has completed one year’s continuous service, may be granted leave on medical certificate for a maximum period calculated at ten days for every completed year of his service less the amount of leave taken under this rule. If he is appointed substantively to a permanent post without interruption of his service, any leave so granted shall be reckoned as leave on medical certificate for the purpose of rule 18. An approved probationer may, however be granted leave for eighteen months in all less the amount of leave taken under this rule, for the treatment of tuberculosis, leprosy, cancer or Hansen’s disease @coronary surgery, kidney transplantation or retina transplantation subject to the production of a medical certificate from the medical officer incharge of a recognised medical institution of his having undergone regular treatment during the period of such leave. [G.O. Ms. No. 807 (F.R.I), dated 24th July 1976.] @(G.O. Ms. No. 596, P. & A.R. Dept., dt. 3-11-1989 come into force w.e.f. 10-10-1988.) Note.— Notwithstanding the provisions of the above rule, all heads of departments are empowered to grant leave as follows to a Government servant of a subordinate service who is on probation and whose probation has been terminated but who has been subsequently reinstated on appeal to cover the period of non-employment:— (1) earned leave at his credit on the day of termination of probation; and (2) extraordinary leave to the extent necessary. (d) Non-permanent Government servants governed by the Tamil Nadu Leave Rules may also be granted special disability leave under the terms and conditions applicable to permanent Government servants (See Note under Fundamental Rule 83)." 10. The contention of the learned counsel for the petitioner that in view of the Rule 23, it was not possible to revise the already sanctioned leave cannot be accepted as maximum permissible leave in case of man suffering from T.B. is only 24 months, under Rule 23, which stipulates that besides the leave of 24 months, person is entitled to extraordinary leave not exceeding 6 months at one time. Therefore, when Rule 28-A is read with Rule 23, the leave over and above 24 months in case of person suffering from T.B. is to be taken as extraordinary leave. 11. Therefore, when Rule 28-A is read with Rule 23, the leave over and above 24 months in case of person suffering from T.B. is to be taken as extraordinary leave. 11. There is no necessity to go into this question at this stage, as admittedly, the impugned order though affecting the civil rights, has been passed in violation of principle of natural justice, on the directions of the audit department without independent application of mind by the competent authority. 12. Consequently, this writ petition is allowed. The impugned order is set aside, but with liberty to the respondents to pass a fresh order after complying with the principle of natural justice. 13. It shall be incumbent on the respondents to pass detailed speaking order giving reason, as to why the order sanctioning the leave was required to be modified. 14. The respondents while deciding the case, shall take sympathetic view, keeping in view of the age of the petitioner and the fact that he is suffering from Tuberculosis. No cost.