Pramod Kumar Das, Member (A)
1. The case of the applicant is that he was appointed as Barber under the respondents-organization on 18.11.1991 in the pay scale of Rs.775-12-955-EB-14-1025/-. As per order dated 24.09.1985 (A/2), working day for a Barber was from Monday to Friday and Saturday and Sunday were holidays. Subsequently, vide order dated 05.06.2013 (A/3), the Barbers working in Military Wing were directed to work on every Saturday and for that they will avail holiday on every Tuesday. It is alleged by the applicant that since on 02.07.2013 he was not allowed to put to signature in the Attendance Register, he submitted representation on the very same day, i.e. 02.07.2013 (A/4) before the Respondent No.2. Since he received lesser salary of Rs. 4142/-, in place of Rs.5418/- what he had received in the previous month, for the month of August 2013, he submitted representation on 02.09.2013 (A/5) requesting the reasons for lesser salary. Further, due to illness he remained on medical leave from 21.01.2014 to 23.01.2014 and also submitted Medical Certificate as per the direction of the Authority. He applied for leave from 29.01.2014 to 31.01.2014 for some urgent work. Since the same was not accepted, as per oral direction, he sent the same through Registered Post. Again, he received lesser salary for the month of February, 2014. On 30.05.2014, applicant submitted representation (A/11) before the Respondent No.2 that he was prevented by one Satish Kumar, Sepoy to perform his duty and to sign the Attendance Register from 27.05.2014 to 29.05.2014. On 24.07.2014, applicant again submitted application before the Respondent No.2 stating that he was being harassed, tortured and insulted by Lt. Col. A.K.Das, Sepoy Satish Kumar, Sepoy Tapan Maity etc. and that they are trying to show him absent from duty. But, despite his repeated representations, since no action was taken by authorities, taking verbal permission from Officiating Director, applicant lodged an F.I.R. in the Chandipur Police Station on 03.09.2014 (A/13) mentioning therein that he is being prevented to discharge his official duty and also not permitted to put his signature in the Attendance Register by the Administrative Officers. It is submitted by the Ld. Counsel for the applicant that meanwhile from August 2013 to October, 2015 an amount of Rs. 1, 31,392/- in toto were deducted from his salary. While the matter stood thus, he approached the Hon'ble CGIT in I.D. Case No. 56/2015 for release of deducted amount. The said case was disposed of by the Hon'ble CGIT on 31.03.2017 with the observation that the Management is not coming under the purview of the Industry, for which the dispute cannot be adjudicated at CGIT. Applicant preferred representation dt. 13.02.2018 before Respondent No.2 praying to release the deducted amount of Rs. 1,31,392/-. Vide Clause-2(b) of the communication dated 11.05.2018 (A/15) issued by Respondent No. 4, applicant has been intimated that as per information of the Establishment Section, the salary deduction for the period from August 2013 to October 2015 cannot be regularized since the deduction is against his absentee period. Being aggrieved, the applicant has filed this OA praying as under:
“(i) quash the Clause -2(b) of the Order dated 11.05.2018 as at Annexure-A/15 and direct the Respondents to release the deducted amount of Rs.1,31,392/- from the monthly salary of the Applicant from August 2013 to October 2015 of the Applicant and thereby direct to regularize the aforesaid alleged absent period within a stipulated period as may be prescribed by this Hon'ble Tribunal;
(ii) pass such other order(s)………………….”.
2. Respondents filed their counter contesting the case of the applicant. It is submitted by the respondents that applicant was appointed as a Barber and posted to Military Wing under the administrative control of Officer Commanding, who is the controlling authority for their timing and nature of work. Though the working days of the applicant was from Monday to Friday, vide Office Order issued under Daily Order Part-I N. 174/2013 dated 05.06.2013 (A/3), all the Barbers working in Military Wing were directed to work on every Saturday and in lieu of that they were directed to avail holiday on every Tuesday. Applicant, defying the aforesaid order, remained unauthorized absent on every Saturday. Despite allowing him opportunities of personal meeting to Grievance Officer to ventilate his grievance vide Annexure-R/3, he did not attend the meeting. Since the applicant was not submitting his leave application duly sanctioned by concerned authority and was remaining absent unauthorizedly habitually, as per Daily Order Part-I No. 169/2013 dated 27.05.2013 (R/1) on the ground of no work no pay, a total of Rs. 1,31,392/- was deducted from his pay and allowances during August 2013 to October 2015. It is also submitted by Ld. Counsel for the respondents that a disciplinary proceedings was also initiated against the applicant in the meanwhile, which culminated into imposition of major penalty vide order dated 28.09.2015 (R/2). Respondents have also refuted the claim of the applicant that his applications were not received by the authorities and, that, he was being harassed, tortured and insulted by some uniform personnel when about 500 employees are working in the organization. It is stated that instead of sending leave application through post or making representation by relatives, applicant should have resorted to official procedure through proper channel for redressal of his grievance. However, they have enclosed the reply dated 15.10.2014 (R/5) addressed to the applicant’s wife on her representation. Any application of any nature submitted by an employees to the management are looked into. The applicant never applied for his leave through proper channel and made false allegation that his applications were not accepted. It is submitted by the respondents that their organization, i.e. Proof & Experimental Establishment, being a Central Govt. Office having national importance, the work culture is very systematic and all official procedures are being maintained in its true spirit and utmost care is being taken to look after employee’s official record/payment etc. Hence, alleging that the applicant’s claim is false and fabricated to get sympathy from this Tribunal, respondents have prayed for dismissal of this OA.
3. Applicant, while reiterating the contentions made in his OA, has filed rejoinder. It is submitted by him that he was neither supplied with the charge sheet nor the punishment order at any point of time. He was also never called to attend inquiry. It is, however, submitted by him that even if he refused to receive the letter, then the respondent authorities are well known about the process to serve the copy upon him. Further, there is no documentary proof that he refused to accept the letters/documents in relation to the alleged proceeding drawn up against the applicant.
4. We have considered the rival contention of the Ld. Counsel for the parties and perused the pleadings and documents placed in support thereof.
5. From the record it is established that the applicant was working as Barber under the respondents. The authority concerned issued an order dated 05.06.2013 directing all Barbers to work in military wing on every Saturday and in lieu thereof they may avail holiday on every Tuesday. The applicant did not obey the order and attend his duty. Therefore, his payment for such days of absence was deducted from his monthly salary. We find that in FR 17(1) it has been provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence and in FR 17-A it has inter alia been provided that where an individual employee remains absent unauthorizedly or deserts the post, the period of such absence shall be deemed to cause an interruption or break in service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession and eligibility for appearing in departmental examinations, for which a minimum period of service is required. The DoP&T issued OM No. 13026/3/2012-Estt (Leave) dated 28.03.2013 stating therein that it has been observed that due seriousness is not being accorded by the administrative authorities to the various rule provisions, inter alia under the CCS(Leave) Rules, 1972, for taking immediate and appropriate action against Government servants staying away from duty without prior sanction of leave or overstaying the periods of sanctioned leave. It is reiterated that such absence is unauthorised and warrants prompt and stringent action as per rules. Accordingly, directed to strictly adhere to the provision of FR 17 (1) and 17-A. The respondents department has also brought the aforesaid provision to the notice of all concerned vide Daily Order Part-I dated 27.05.2013 (R/1). According to the applicant, he has submitted leave application but facts remains that the leave was not sanctioned by the authority concerned. Therefore, deduction of the leave salary from the pay of the pplicant for his unauthorized absence is found to be in accordance with rules/instruction referred to above.
6. It is found that subsequently the unauthorized absence was the subject matter of disciplinary proceeding initiated against the applicant under Rule 14 of CCS (CCA) Rules, 1965 vide memorandum dated 15.04.2014 containing two articles of charges as under:
“Article-I
That the said Shri Hemanta Kumar Barik, Pers. No. 586 while functioning as a Barber in Military Wing of Proof & Experimental Establishment, Chandipur, Balasore has committed an offence of gross misconduct unbecoming of a Government servant in that he has been disobeying the order as published vide DO Pt.-1 No. 174/2013 dated 05 June 2013 and as a result frequently absenting himself from duty on that particular day without prior sanction of leave or prior permission of the competent authority. Thus the said Shri Hemanta Kumar Barik has wilfully violated Rule 3(1) (ii) and Rule 3(1) (iii) of the CCS (Conduct) Rules, 1964.
Article-II
That the said Shri Hemanta Kumar Barik, Barber during the specific days on 16 Aug 2013, 25 Oct 2013 and 10 Feb 2014 while on duty at Military Wing, acted in a manner unbecoming of a Government servant and in that on all the three occasions, the said individual refused to accept the official letters dated 13 Aug 2013, 25 Oct 2013 and 10 Feb 2014 issued by name to him which were to be handed over to him through OC, Military Wing. Such type of act and conduct amount to misconduct and subversive of discipline.”
7. The proceedings, as it appears from record, ended with the following punishment:
“The pay of the individual noted on the margin be reduced by 02 (Two) stages from Rs 10,000/- + 2000/- (GP) to Rs. 9310/- + 2000/- (G.P) in the Pay Band of Rs 5200/- - 20,200/- (PB-01) with Grade Pay of Rs. 2000/- for a period of two years with effect from 01st Oct 2015 It is further directed that the individual will not earn increments of pay during the period of reduction and that on the expiry of this period, the reduction will have no effect of postponing his future increments of pay.
The following period of unauthorized absence from duty in respect of the individual shall be treated as 'Dies Non' for all purposes. However, this shall not amount to break in service and the past service rendered by him shall count for all purposes and the period of 'Dies Non' itself shall not count for any purpose.”
Fact remains that the aforesaid order of punishment has neither been challenged by the applicant in this OA nor has it been reversed by the Appellate Authority. Hence, the punishment is set at rest.
8. It further reveals from the record that the applicant submitted representation for release of the deducted amount from his salary due to his unauthorized absence. The authority concerned considered his representation and intimated to him vide order dated 11.05.2018 (A/15) that “the matter of releasing the deduction of salary from the month of August 2013 to Oct 2015 has been informed by est. section that the salary deduction for the period from Aug 2013 to Oct 2015 can not be regularized since the deduction is against your absentee period”.
9. The applicant in this OA seeks to quash the intimation given to him vide order dated 11.05.2018 and to direct the respondents to release the withheld amount and regularize the absent period, at the cost of repetition, without assailing/challenging/seeking to quash the order passed in disciplinary proceedings, which is nothing but beating around the bush. What cannot be done directly cannot be permitted to be done indirectly is the basic principle involved in various decision by the Hon’ble Apex Court. The payment of the deducted amount can only be made if his period of unauthorized absence is treated as duty. The period of his absence has already been held to be unauthorized one and treated as dies non by the authority concerned in due procedure of rules, which is not challenged in this OA. It is needless to state the law of the land that when a relief for which no prayer or pleading was made should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the applicant of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice. In view of the above, the applicant fails to make out any case for the judicial intervention of this Tribunal.
10. In the result, the OA stands dismissed leaving the parties to bear their own costs.
