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IN THE HIGH COURT OF DELHI AT NEW DELHI
Suresh Kumar Kait, Saurabh Banerjee, JJ.
Kripa Shanker Shukla - Appellant
Versus
Union Of India Through Home Secretary & Ors. - Respondents
W.P.(C) 4531/2020
Decided On : 30-08-2022
Leave - Unauthorized Absence - CCS (Leave Rules), 1972 - The court set aside the impugned orders and directed the respondents to follow the principles of natural justice, serve a fresh detailed Show Cause Notice to the petitioner, constitute a competent authority, accord petitioner due opportunity of fair hearing, and pass a well-reasoned order within twelve weeks from the date of the judgment. The period of unauthorized absence from office without grant of leave for 79 days during 22.04.2019 till 25.07.2019 shall not be treated as dies non. The said period of dies non shall also not be regularized till the pendency/disposal of the proceeding before the competent authority. If the petitioner succeeds in proving his case before the competent authority, the said period of 79 days shall not be treated as dies non and he shall be entitled to the complete amount wrongly withheld by the respondents for the aforesaid period of 79 days during 22.04.2019 till 25.07.2019 and also for his annual increment along with interest at 6% per annum from the date of its accrual till the date of its final payment thereof by the respondents.
Fact of the Case:
The petitioner, an Assistant Commandant in the Border Security Force, sought leaves on twelve different occasions due to his son's and his own medical illness. The respondents sanctioned leave on seven occasions but denied leave on the rest five occasions. The respondents later issued impugned orders treating the petitioner's unauthorized absence as dies non under Rule 25 of the CCS (Leave Rules), 1972.
Finding of the Court:
The court found that both the petitioner and the respondents were at fault. The petitioner's unauthorized absence was not justifiable, but the respondents hurriedly issued the impugned orders without following the principles of natural justice. The court directed the respondents to serve a fresh detailed Show Cause Notice to the petitioner, constitute a competent authority, accord petitioner due opportunity of fair hearing, and pass a well-reasoned order within twelve weeks from the date of the judgment.
Issues: Unauthorized absence, impugned orders, principles of natural justice, regularization of leave, annual increment
Ratio Decidendi: The court held that the respondents' issuance of impugned orders without following the principles of natural justice was a fundamental fault. The respondents should have issued a formal show cause notice, granted a due opportunity of being heard, and passed a well-reasoned speaking order before taking any grave action against the petitioner.
Final Decision: The court set aside the impugned orders and directed the respondents to follow the principles of natural justice, serve a fresh detailed Show Cause Notice to the petitioner, constitute a competent authority, accord petitioner due opportunity of fair hearing, and pass a well-reasoned order within twelve weeks from the date of the judgment. The period of unauthorized absence from office without grant of leave for 79 days during 22.04.2019 till 25.07.2019 shall not be treated as dies non. The said period of dies non shall also not be regularized till the pendency/disposal of the proceeding before the competent authority. If the petitioner succeeds in proving his case before the competent authority, the said period of 79 days shall not be treated as dies non and he shall be entitled to the complete amount wrongly withheld by the respondents for the aforesaid period of 79 days during 22.04.2019 till 25.07.2019 and also for his annual increment along with interest at 6% per annum from the date of its accrual till the date of its final payment thereof by the respondents.
JUDGMENT
Saurabh Banerjee, J. - As per petitioner, since joining service with the Border Security Force (hereinafter referred as 'BSF') in December, 1991 as Assistant Commandant, he moved up the rank to be promoted as Commandant in 2010. Petitioner then assumed charge as Superintendent of Police, Bureau of Police Research and Development, Ministry of Home Affairs (hereinafter referred to as 'Bureau') on 01.08.2018. Between January, 2019 till September, 2019 petitioner sought leaves on as many as twelve different occasions from the DIG(Admn.), Bureau, due to his son's and his own medical illness. Out of which the respondents later only sanctioned his leave on seven occasions but denied leave on the rest five occasions.
2. During the said period, the respondents vide letter dated 17.05.2019 sought two medical documents for sanctioning his leave for the period of 79 days with effect from 22.04.2019 till 25.05.2019. Upon satisfactory examination of documents by the Chief Medical Officer (Selection Grade), BSF on 03.06.2019, issued a fitness certificate declaring the petitioner fit to resume his duties. However, the petitioner kept applying for more leaves from time to time.
3. The respondents vide Office Memorandum No. 2/43/2018-PF/Adm dated 20.06.2019 apprised the petitioner about non-sanction of his 37 days leave on medical grounds and advised him to apply appropriately. The respondents vide another Office Memorandum of even date apprised the petitioner of his being absent from duty with effect from 22.04.2019 and directed him to report for duties immediately failing which disciplinary action would be taken against him. Instead of replying thereto, petitioner once again sought further 30 days earned leave from the DIG(Admn.), Bureau by verbal consent on 24.06.2019 and proceeded for leave on 26.06.2019. Vide letter dated of even date, the respondent no.2 for the first time since joining of petitioner with the Bureau on 01.08.2018, asked him to submit leave application in the prescribed format to the Assistant Director (Estt.), Bureau.
4. The petitioner accordingly submitted a proper leave application of 30 days, albeit to the Superintendent of Police, Bureau on 04.07.2019. Thereafter as the petitioner's son underwent psychiatric treatment with effect from 27.07.2019 to 17.08.2019, he never applied for any leave and instead apprised the Director General, Bureau that his request for repatriation to his parent department, i.e. BSF stood accepted by respondent no. 1 and sought relieving him from his current posting. However, the respondents retained him, only to be harassed and tortured by the DIG(Admn.), Bureau.
5. The petitioner vide letter dated 02.09.2019 and subsequent reminders, informed the respondents that as per his pay slip for August 2019, the annual increment had not been effected therein and sought for his leave regularization. In the meanwhile, petitioner sought further 3 days commuted leave from the DIG(Admn.), Bureau by verbal consent on 18.09.2019, which was sanctioned.
6. The respondent no.2 issued Memorandum No. 2/43/2018-PF/Adm dated 24.09.2019 seeking explanation from the petitioner for his unauthorized absence from office without grant of leave for 79 days during 22.04.2019 till 25.07.2019, in 4 different phases as stated therein, within 24 hours. Undeterred by the short time on hand, the petitioner filed his response on 25.09.2019 itself. The respondents finally repatriated the petitioner to BSF on 26.09.2019. Thereafter the petitioner vide subsequent letters asked for his Non-Initiation Certificate and resolution of the issue of his annual increment of July 2019.
7. The respondent no.2 then issued Office Order No. 2/43/2018-PF/Adm dated 07.11.2019 (hereinafter referred to as 'first impugned order') to the petitioner, directing the period of 79 days absence of petitioner with effect from 22.04.2019 till 25.07.2019 be treated as dies non under Rule 25 of the CCS (Leave Rules), 1972 (hereinafter referred to as 'CCS Rule
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