P. Gopinath, S/o. N. Padmanabhan Achari v. State of Kerala, Represented By The Secretary to Government of Kerala, Forest and Wildlife Department, State Secretariat
2019-11-12
K.VINOD CHANDRAN, V.G.ARUN
body2019
DigiLaw.ai
JUDGMENT : V.G. ARUN, J. The petitioner, who was the applicant before the Kerala Administrative Tribunal, is aggrieved by the order of the Tribunal in T.A.No.781 of 2012. The short facts of the case, with reference to the parties and the Exhibits as in the Transferred Application, are as under:- The applicant, while working as Range Officer, was suspended from service by order dated 4.3.1988. Pending the disciplinary proceedings, the applicant was ordered to be reinstated in service as per Ext.P2 dated 8.7.1992. The order was served on the applicant on 29.7.1992, but he did not join duty since he was not served with a posting order. The disciplinary proceedings initiated against the applicant culminated in an order directing recovery of an amount of Rs.26,528/- from him. Meanwhile, another disciplinary proceeding was initiated against the applicant for his unauthorised absence, despite the order of reinstatement. By Ext.P3 memo dated 7.2.1995, the applicant was called upon to explain the reason for his unauthorised absence. In the meanwhile, the applicant was posted to the Range Office(Special Duty), Thiruvananthapuram Division as per order dated 13.6.1995, pursuant to which he joined duty on 14.6.1995. 2. In continuation of the disciplinary proceedings for unauthorised absence, the applicant was served with memo of charges along with statement of allegations on 11.8.1995, followed by an enquiry. Based on the enquiry report the disciplinary authority passed Ext.P6 order, imposing a punishment of barring of three increments with cumulative effect. On appeal filed by the applicant, the appellate authority ordered to drop the punishment vide Ext.P7 dated 9.5.2002. 3. With respect to the period of unauthorised absence from 9.7.1992 to 14.6.1995, the Government issued Ext.P1 order directing to treat the said period as eligible leave, subject to the condition that the period in excess of eligible leave, if any, will be treated as leave without allowance and with the further condition that the period of unauthorised absence will not count for any service benefit such as increment, grade promotion, accumulation of earned leave and pension. 4. Being aggrieved by Ext.P1, the applicant approached this Court in W.P.(C) No.5399 of 2006, which was later transferred to the Kerala Administrative Tribunal and numbered as T.A.No.781 of 2012. The main contention urged by the applicant was that he was not served with any posting order along with the order of reinstatement.
4. Being aggrieved by Ext.P1, the applicant approached this Court in W.P.(C) No.5399 of 2006, which was later transferred to the Kerala Administrative Tribunal and numbered as T.A.No.781 of 2012. The main contention urged by the applicant was that he was not served with any posting order along with the order of reinstatement. It was submitted that in Ext.P7 order issued by the appellate authority, it was specifically found that along with Ext.P2, the applicant was not served with the posting order. It was contended that the applicant could not have joined duty without posting order and that he had joined duty immediately on being served with the posting order, Ext.P4. It was hence contended that the period during which the applicant was kept out of service due to non-service of posting order, cannot be treated as unauthorised absence. 5. In reply to the contentions urged by the applicant, the official respondents submitted that, pursuant to the reinstatement of the applicant, Ext.R1(a) had been issued, posting the applicant as Instructor at the Kerala Forest School, Walayar. It was contended that even if accepting, without admitting that the posting order was not received by the applicant, as a public official, it was his duty to report, either at the office from where he was placed under suspension or before the Head of the Department, expressing his willingness to join duty. It was pointed out that during the course of enquiry on the charge of unauthorised absence, the applicant had deposed that he had not approached any authority for getting the posting order and that he was not in a mental condition to make any enquiry and had waited for the order to be served in its due course. It was therefore contended that there were serious laches on the part of the applicant in having kept idle, without seeking a posting or without even an enquiry as to why he was not given a posting, in spite of reinstatement in service. That, having deliberately kept away from duty, the applicant is not entitled for any benefit during the period he had not worked. 6. The Tribunal, after elaborate consideration of the contentions, both legal and factual, held that normally, an employee whose suspension is revoked, will enquire about the delay in being served with the posting order.
That, having deliberately kept away from duty, the applicant is not entitled for any benefit during the period he had not worked. 6. The Tribunal, after elaborate consideration of the contentions, both legal and factual, held that normally, an employee whose suspension is revoked, will enquire about the delay in being served with the posting order. The Tribunal therefore held that the applicant had deliberately stayed away from work and that, the principle of 'no work, no pay' would apply. The Tribunal referred to Rules 2(6) and 23(a) of Part IKS&SSR and found that a person could be held to be on duty as member of a service only when he is performing such duty. Based on the findings, the Tribunal refused to interfere with Ext.P1 order of the Government and consequently, dismissed the transfer application. 7. In this original petition also, the main contention urged is that the petitioner could not have joined duty without being served with a posting order and that the assumption of the Tribunal to the contrary is without basis. Reliance is placed on Ext.P7 order of the appellate authority to contend that the petitioner was not served with a posting order, and in the absence of which he could not have reported for duty. It is contended that the appellate authority having set aside the punishment for unauthorised absence, the Government committed a mistake in imposing a penalty on the petitioner, in the guise of an order with respect to regularisation of the suspension period. 8. The short question to be considered is as to whether the petitioner to have enquired about absence of the posting order, in spite of being served with the reinstatement order.
8. The short question to be considered is as to whether the petitioner to have enquired about absence of the posting order, in spite of being served with the reinstatement order. In this context, the definition of the word 'duty' in Rule2(6) of Part I KS&SSR, which is extracted hereunder, assumes relevance:- “A person is said to be “on duty” as a member of a Service - (a) when he is performing the duties of a post borne on the cadre of such service or is undergoing the probation, instruction or training prescribed for such service; (b) when he is on joining time; or (c) when he is absent from duty during vacation or on authorised holidays or on casual leave taken in accordance with the instructions regulating such leave issued by the State Government having been on duty immediately before and immediately after such absence; or (d) when he is on deputation, during his period of probation, for training or for acquisition of higher or additional qualification in public interest; or (e) when he is waiting for posting orders after reporting for duty; or (f) when he is given the benefit of notional promotion consequent on revision of rank and seniority etc. or (g) in the case of a female member, when she is on maternity leave during her period of probation.” As per Rule 2(6) (e), the person is said to be on duty when he is waiting for posting orders after reporting for duty. This definitely indicates that the petitioner was obliged to report for duty on being served with the order of reinstatement. Having failed to do so, or even to enquire about the posting order, the petitioner cannot contend that the period during which he had wilfully kept away from service should be reckoned as duty. 9. In Ext.P2, it is stated that copy of the order of reinstatement is submitted to the Principal Chief Conservator of Forests (General), Thiruvananthapuram for information with a request for necessary posting orders to the petitioner at the earliest. It was on the basis of this request that the petitioner was posted as Instructor, Kerala Forest School, Walayar as per Ext.R1(a).
In Ext.P2, it is stated that copy of the order of reinstatement is submitted to the Principal Chief Conservator of Forests (General), Thiruvananthapuram for information with a request for necessary posting orders to the petitioner at the earliest. It was on the basis of this request that the petitioner was posted as Instructor, Kerala Forest School, Walayar as per Ext.R1(a). Therefore, any prudent person would have made enquires regarding the request for issuance of posting orders mentioned in Ext.P2, rather than taking an obstinate stand that he would join duty only on being personally served with a copy of the posting order. As rightly held by the Tribunal based on Rule 23(a) of Part I KS&SSR, an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post. The petitioner, having refused to report for duty in the pretext of waiting to be served with the posting order, has no legal right to demand that the period from the date of receipt of the order of revocation of suspension till the date he joined duty, should be treated as duty for all purposes. We find the reasoning in Ext.P1 order of the Government, as affirmed by the Tribunal in the impugned order, to be well founded. In the result, the challenge against the impugned order fails and the original petition stands dismissed. No order as to costs.