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2014 DIGILAW 89 (TRI)

Amar Paul v. State of Tripura

2014-02-14

S.C.DAS

body2014
JUDGMENT S.C. Das, J.:- In a short compass, fact of this writ case, filed by the petitioner under Article 226 of the Constitution of India, is that he was appointed as Assistant Teacher under the Directorate of School Education, Government of Tripura (respondent No. 2) on 14.01.1983 and was posted at Radhacharan Thakurpara Junior Basic School under Inspectorate of Schools, Jirania. He joined his duties on 25.01.1983 and rendered his services up to 19th December, 1984. Thereafter, he discontinued from attending his service for alleged reasons beyond his control and remained absent from duties for a continuous period of 14 years. On 15.02.1999, he made a representation to resume his duties and his representation was favourably considered by respondent No. 2 and on 23.10.2000 respondent No. 2 directed the Inspector of Schools, Jirania to allow the petitioner to resume his duties in the school, where he was posted (Radhacharan Thakurpara Junior Basic School), and accordingly, the petitioner joined his duties on 08.11.2000. During the period of his absence from duties, in the year 1986, Radhacharan Thakurpara Junior Basic School under Jirania Schools Inspectorate, by a Notification dated 01.04.1986 was handed over to the Tripura Tribal Areas Autonomous District Council (for short, TTAADC) with all properties including teaching and non-teaching staff, 'as is where is' condition, and in the list of teachers, the petitioner's name was not figured, perhaps, because of mistake, since the petitioner was not on duty at the relevant point of time. The petitioner's joining report dated 08.11.2000 was sent to the appropriate authority of the TTAADC and the authority decided not to accept the joining report of the petitioner in the school of the District Council since the service of the petitioner was not handed over to the District Council. In the meantime, the petitioner performed his duties at Radhacharan Thakurpara Junior Basic School from 08.11.2000 to 31.01.2001 but could not put his signature in the attendance register and his salaries and allowances were also not paid by the TTAADC. In the meantime, the petitioner performed his duties at Radhacharan Thakurpara Junior Basic School from 08.11.2000 to 31.01.2001 but could not put his signature in the attendance register and his salaries and allowances were also not paid by the TTAADC. Since his service was not accepted by the TTAADC and since he was not posted in any school under the Directorate of School Education (respondent No. 2), under such circumstances, he filed writ petition vide WP(C) 143 of 2003 in the Gauhati High Court, Agartala Bench and the learned Single Judge of the High Court by order dated 01.02.2005 disposed of the writ petition with following observations and direction:- 7. As the controversy has now been narrowed down by the admission that the respondent No. 2 was the employer of the petitioner and though he remained absent for a long period he was allowed to resume duties by respondent No. 2 though the school in which he was originally posted had been transferred to the council in the meantime and the list of employees whose service were placed at the disposal of the council omitted his name, it is to be held that the petitioner continued to remain an employee under the State respondents. As admittedly the school as well as the Jirania Inspectorate were transferred to the council, the respondent No. 2 was not competent to unilaterally take a decision about the joining of the petitioner after lapse of more than 14 years if he was to be treated as one of the employees whose services had been placed at the disposal of the council. The direction of the respondent No. 2 to the extent that he was to resume duties in the same school, which had been transferred to the council, appears to be invalid being without authority though the other part of the order allowing him to resume duties remains within the competence of the Respondent No. 2. The logical conclusion should be that the Respondent No. - 2 having permitted the petitioner to resume duties should have posted him in any school outside the Autonomous District or should have first taken up the matter with the council before issuing any instruction straightway to the Inspector of Schools, Jirania to allow the petitioner to resume duties. The logical conclusion should be that the Respondent No. - 2 having permitted the petitioner to resume duties should have posted him in any school outside the Autonomous District or should have first taken up the matter with the council before issuing any instruction straightway to the Inspector of Schools, Jirania to allow the petitioner to resume duties. The principal Officer (Education) of the council having forwarded the joining report of the petitioner to the respondent No. 2 should not have withheld the pay and allowance of the petitioner for the period during which he had attended the school and taken classes though under a wrong order from the respondent No. - 2. 8. This writ petition therefore stands disposed of with a direction to the State respondents to post the petitioner in any school outside the Autonomous District as his services were not placed at the disposal of the council. At the same time the long spell of absence which apparently appears to be unusual needs to be settled according to the relevant rules applicable to the petitioner. As admittedly the Petitioner arved in the Radhacharan Thakurpara Junior Basic School for a period of three months though under a mistaken order of respondent No. - 2 the council should release his pay and allowances for that period as he rendered service to the council. This direction should be implemented within a period of three months from the date of this order. The Petitioner shall not be entitled to any pay and allowances for the remaining period till he resumed duties in the place of his posting as may be ordered by State respondent. No Cost. Pursuant to the above judgment, the petitioner was allowed to join his duties under the Directorate of School Education, Government of Tripura on 29.04.2005 and he made representation to the appropriate authority (Annexure-C to the writ petition) for treating the period from 01.02.2001 to 28.04.2005 as on duty and also prayed for salary, increment, etc., benefits. In the meantime, he got the notice of superannuation w.e.f. the forenoon of 30.04.2006 attaining the superannuation age. The respondents by Memo. dated 21.10.2005 (Annexure-B to the writ petition) held that the period of absence from duties w.e.f. 05.11.1984 to 07.11.2000 and 01.02.2001 to 28.04.2005 shall be treated as dies non for all purposes, i.e. increment, leave, pension, etc. without forfeiture of past service. The respondents by Memo. dated 21.10.2005 (Annexure-B to the writ petition) held that the period of absence from duties w.e.f. 05.11.1984 to 07.11.2000 and 01.02.2001 to 28.04.2005 shall be treated as dies non for all purposes, i.e. increment, leave, pension, etc. without forfeiture of past service. Having felt aggrieved, the present writ petition is filed praying for directing the respondents not to treat the period, as aforesaid, as dies non. 2. Respondents by filing counter affidavit contended that the petitioner was absent from duties for continuous period and as per the High Court's order passed in WP(C) No. 243 of 2003 the period of absence has been regularized by treating it as dies non, since there is no other scope to regularize it. There is no scope of regularizing the period from 05.11.1984 to 07.11.2000 and the period from 01.02.2001 to 28.04.2005. As per the High Court's order the period from 08.11.2000 to 31.01.2001 was treated as on duty at Radhacharan Thakurpara Junior Basic School and pursuant to the High Court's order for the said period payment was also made. The respondents further contended that Annexure-B to the writ petition, i.e. Memo. dated 21.10.2005 was cancelled by Memo. dated 23.05.2006 (Annexure-R/1 to the counter affidavit) and thereafter by Memo. dated 20.06.2006 (Annexure-R/2 to the counter affidavit). Show cause notice was issued to the petitioner to explain as to why the aforesaid period of absence w.e.f. 05.11.1984 to 07.11.2000 and 01.02.2001 to 28.04.2005 should not be treated as dies non, and thereafter in consideration of the submission of the petitioner by Memo. dated 10.08.2006, the final order was passed directing that the aforesaid period should be treated as dies non for all purposes, i.e. increment, leave, pension, etc. 3. Learned counsel, Mr. Chowdhury appearing on behalf of the petitioner has submitted that in the year 1986, Radhacharan Thakurpara J.B. School under the Inspectorate of Schools, Jirania, was handed over to the TTAADC with all its assets, land, teaching and non-teaching staff, etc. but the name of the petitioner was not included and that has created a severe problem when the petitioner joined his duties on 08.11.2000. but the name of the petitioner was not included and that has created a severe problem when the petitioner joined his duties on 08.11.2000. Since it was a situation created because of the transfer of the school to TTAADC the petitioner cannot be held guilty for not joining his duties and the subsequent embargo which occurred because of the conflict between the TTAADC and the State Government, the petitioner should be treated as on duty for the period from 01.02.2001 to 28.04.2005 and should be given all service benefits. According to Mr. Chowdhury, learned counsel of the petitioner, dies non means legal holiday as per the Webster Dictionary and as per Legal Glossary dies non means a day on which general business may not lawfully be transacted. By declaring a period as dies non an employee cannot be deprived of his pensionary and other benefits. It is contended by Mr. Chowdhury, learned counsel that under compelling circumstances the petitioner absented from his duties for many years. When he was fit to join his duties, he submitted his prayer for resumption of his duties which was duly considered by respondent No. 2 and, accordingly he joined to Radhacharan Thakurpara J.B. School but because of the conflict between the TTAADC and the State Government he could not continue his services in that school, for which he cannot held responsible. Subsequently, as per order of the High Court he joined his services under the Directorate of School Education, Government of Tripura and served till the date of his superannuation but because of the orders passed by the respondent No. 2 declaring the period as dies non, as aforesaid, the petitioner will be deprived of all his service benefits and will be compelled to face starvation. Learned counsel, Mr. Chowdhury referred Rule 31 of the Tripura State Civil Services (Leave) Rules, 1986 and submitted that the period of absence of the petitioner could have been adjusted by the respondents by way of granting extraordinary leave and necessary order may be passed by this Court to treat it accordingly. In support of his contention he has referred the decision of the Gauhati High Court in the case of Amitangshu Dhar v. The President, Shillong Cantonment Board, Shillong reported in 1998 (1) GLT 95. 4. Countering the submission of learned counsel, Mr. Chowdhury, learned State counsel, Mr. In support of his contention he has referred the decision of the Gauhati High Court in the case of Amitangshu Dhar v. The President, Shillong Cantonment Board, Shillong reported in 1998 (1) GLT 95. 4. Countering the submission of learned counsel, Mr. Chowdhury, learned State counsel, Mr. J. Majumder has submitted that the word, "dies-non" is not foreign to the Service Jurisprudence. Rule 24 of the Tripura State Civil Services (Leave) Rules, 1986 deals with the concept of dies non and a person like the petitioner who absented from duties voluntarily and willfully without any prior permission should be treated as dies non as there is no other scope to give him benefit of leave in any other form. He has contended that the period has been declared as dies non after giving all opportunities to the petitioner of being heard, which is evident from (Annexure-R/2 and R/3 to the counter affidavit) and, hence the writ Court may not interfere in the administrative action taken by the respondents. 5. The power of judicial review of the decision of an administrative authority is very limited. Such judicial review is possible only when the principle of natural justice has been violated, i.e. the opportunities, which ought to be given to the delinquent, as per rules, were not given or that the decision of the domestic tribunal was based on no material/evidence and that an adverse order has been passed or a punishment is inflicted which is shocking to the judicial conscience. If there is no glaring violation of principles of natural justice and there is some material to support the decision taken by the administrative authority, the Court cannot sit as a matter of appeal to re-appreciate the material and/or evidence and to substitute the view of the Court in the place of the decision taken by the disciplinary/administrative authority. 6. Annexure-A, the judgment of the Gauhati High Court in WP(C) No. 243 of 2003, is relied on by the petitioner. I have already reproduced hereinbefore the relevant concluding paragraphs of the judgment, which the petitioner relied on. In the judgment, it has been clearly spelt out that the long-spell of absence which apparently appears to be unusual needs to be settled according to the relevant rules applicable to the petitioner. I have already reproduced hereinbefore the relevant concluding paragraphs of the judgment, which the petitioner relied on. In the judgment, it has been clearly spelt out that the long-spell of absence which apparently appears to be unusual needs to be settled according to the relevant rules applicable to the petitioner. In view of that direction, it is presumed that the respondent No. 2 has taken up the issue to deal with the period of absence of the petitioner from duties according to law. As per the direction of the High Court, payment for the period from 08.11.2000 to 31.01.2001, when the petitioner served at Radhacharan Thakurpara J.B. School after his resumption of duties has already been paid. In para 8 of the judgment, the High Court has clearly directed the State respondents to post the petitioner in any school outside the TTAADC as his service was not placed at the disposal of the council. According to that direction, the petitioner was posted under the Directorate of School Education and he served till his date of superannuation. At the end of para 8 of the judgment the High Court clearly spelt out that the petitioner shall not be entitled to any pay and allowances for the remaining period till he resumed duties in the place of his posting as may be ordered by the State respondents. This observation of the Court has not been challenged by the petitioner. The High Court clearly observed that the petitioner shall be entitled to the salaries for the period he performed duties in Radhacharan Thakurpara J.B. School, i.e. the period from 08.11.2000 to 31.01.2001 and the Court has made it abundantly clear that for the period from the date the services of the petitioner ended in Radhacharan Thakurpara J.B. School till he resumed his duties as per the order of the Court under the Directorate of School Education, he shall not be entitled to pay and allowances, etc. Since that order has not been challenged by the petitioner, rather the petitioner relied on that order, now the petitioner by filing another writ petition cannot claim the benefit for the period from 01.02.2001 to 28.04.2005 on the ground that he could not perform his duties during that period for the conflict between the TTAADC and the State respondents. 7. Since that order has not been challenged by the petitioner, rather the petitioner relied on that order, now the petitioner by filing another writ petition cannot claim the benefit for the period from 01.02.2001 to 28.04.2005 on the ground that he could not perform his duties during that period for the conflict between the TTAADC and the State respondents. 7. The words, "dies non" are generally used in service matters when a Government employee is found to be absent from duties unauthorizedly. Rule 24 of the Tripura State Civil Services (Leave) Rules, 1986 reads as follows:- 24. Absence after expiry of leave. (1) Unless the authority competent to grant leave extends the leave, a Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave, to the extent such leave is due, the period in excess of such leave due being treated as extraordinary leave. (2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Note:- Treatment of willful absence from duty not recognized-- Willful absence from duty, even though not covered by grant of leave does not entail loss of lien. The period of absence not covered by grant of leave shall have to be treated as "dies non" for all purposes, viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its powers under Article 421, Civil Service Regulations [now Rule 27 of the Central Civil Services (Pension) Rules] to treat the period as leave without allowance, the entire past service will stand forfeited. 8. While the petitioner was unauthorisedly absent from duties at his own whims and caprices and he has no leave due, there is no other alternative for the State respondents but to declare the period as dies non. Annexure-R/2 and Annexure-R/3 to the counter affidavit clearly show that a show cause notice was issued before the order of dies non was passed. So, the petitioner cannot say that reasonable opportunity was not given to him before declaring that period as dies non by Memo. Annexure-R/2 and Annexure-R/3 to the counter affidavit clearly show that a show cause notice was issued before the order of dies non was passed. So, the petitioner cannot say that reasonable opportunity was not given to him before declaring that period as dies non by Memo. dated 10.08.2006 (Annexure-R/3 to the counter affidavit). 9. Rule 31 of the Tripura State Civil Services (Leave) Rules, 1986 deals with 'extraordinary leave', which reads as follows:- 31. Extraordinary leave. (1) Extraordinary leave may be granted to a Government service in special circumstances-- (a) When no other leave is admissible; (b) When other leave is admissible, but the Government servant applies in writing for the grant of extraordinary leave. (2) Unless the Governor in view of the exceptional circumstances of the case otherwise determines, no Government servant, who is not in permanent employ or quasi-permanent employ, shall be granted extraordinary leave on any one occasion in excess of the following limits-- (a) three months; (b) six months, where the Government servant has completed on year's continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months extraordinary leave under clause (a) and his request for such leave is supported by a medical certificate as required by these rules; (c) eighteen months, where the Government servant who has completed on year's continuous service is undergoing treatment for-- (i) pulmonary tuberculosis or pleurisy of tubercular origin, in the Government hospital or in any sanatorium recognized by the State Government. Note:- The concession of extraordinary leave up to eighteen months shall be admissible also to a Government servants suffering from pulmonary tuberculosis or pleurisy of tubercular origin who receives treatment at his residence under tuberculosis specialist recognized as such by the State Government and produces a certificate signed by that specialist to the effect that he is under his treatment and that he has reasonable chances of recovery on the expiry of the leave recommended. (ii) Leprosy in a recognised leprosy institution or by a specialist in leprosy hospital recognised as such by the State Government; (iii) Cancer or for mental illness, in Government hospital or in an institution recognised by the State Government for the treatment of such disease. (ii) Leprosy in a recognised leprosy institution or by a specialist in leprosy hospital recognised as such by the State Government; (iii) Cancer or for mental illness, in Government hospital or in an institution recognised by the State Government for the treatment of such disease. (d) Twenty-four months, where the leave is required for the purpose of persecuting studies certified to be in the public interest, provided the Government servant concerned has completed three years' continuous service on the date of expiry of leave of the kind due and admissible under these rules, including three months' extraordinary leave under clause (a) (3) (a) Where a Government servant is granted extraordinary leave in relaxation of the provisions contained in clause (d) of sub-rule (2), he shall be required to execute a Bond in Form 5 undertaking to refund to the Government the actual amount of expenditure incurred by the Government during such leave plus that incurred by any other agency with interest thereon in the event of his not returning to duty on the expiry of such leave or quitting the service before a period of three years after return to duty. (b) The Bond shall be supported by sureties from two permanent Government servants having a status comparable to or higher than that of the Government servant. (4) Government servants belonging to the Scheduled Castes or the Scheduled Tribes communities may, for the purpose of attending the Pre-Examination Training Course at the centres notified by the Government from time to time, be granted extraordinary leave by Heads of Departments in relaxation of the provisions of sub-rule (2) (5) Two spells of extraordinary leave, if intervened by any other kind of leave, shall be treated as one continuous spell of extraordinary leave for the purposes of sub-rule (2). (6) The authority competent to grant leave may commute retrospectively periods of absence without leave into extraordinary leave. Note:- Two spells of extraordinary leave intervened by a spell of special casual leave should be treated as one spell for purposes of limits prescribed in Rule 14(b), R.L.R. [C. Rule 31(5)]. If the limits prescribed in that rule are thereby exceeded, extraordinary leave may be granted in relaxation of the rule in consultation with the Government in the Finance Department. 10. There was no prayer for extraordinary leave from the side of the petitioner. If the limits prescribed in that rule are thereby exceeded, extraordinary leave may be granted in relaxation of the rule in consultation with the Government in the Finance Department. 10. There was no prayer for extraordinary leave from the side of the petitioner. In the facts of the present case, the petitioner was continuously absent from duties from 05.11.1984 to 07.11.2000, i.e. for about 16 years and there is no scope except to declare that period as dies non. Again the petitioner did not perform his duties w.e.f. 01.02.2001 to 28.04.2005. There is no leave due in the account of the petitioner. So, that period was also declared as dies non for the reasons assigned in the order passed by the respondent No. 2. Since there was reason for the respondent No. 2 in passing such order, this Court in exercise of its writ jurisdiction cannot interfere in the order. The decision of Amitangshu Dhar (supra) cited on behalf of the petitioner has no relevance in the facts of the present writ petition and I find nothing to discuss on the ratio of that judgment further. In view of the discussions made above, the writ petition stands dismissed but in the circumstances without cost.