A change in increment month due to Leave Without Pay is lawful if not substantiated as medical, and violation of natural justice does not nullify an order without proven prejudice.

Order :

AVNEESH JHINGAN, J.

1. This petition is filed seeking quashing of order dated 24.02.2022 passed by the Central Administrative Tribunal, Jaipur Bench, Jaipur (for short ‘the Tribunal’) dismissing the Original Application (for brevity ‘OA’) of the petitioner.

2. The brief facts are that the petitioner superannuated on 31.03.2009 from the post of Guard Mail. Consequent to the order dated 28.04.2008 granting Leave Without Pay (hereinafter ‘LWP’), the effective date for grant of increment was shifted from March to July from the year 1999 onwards. The change in date for grant of increment was for the reason that as per rule, the period of LWP was to be excluded for counting the service period for grant of increment. The change of date of increment affected the grant of stagnation increment (hereinafter referred to as ‘SI’). The representation filed by the petitioner against the change of month for increment was rejected on 09.12.2010. The OA filed by petitioner was dismissed. The Tribunal dismissed OA on merits and being time barred. It was considered that LWP on medical ground is to be excluded for calculating the service for grant of increment but the petitioner failed to substantiate that LWP was on account of medical reason.

3. Learned counsel for the petitioner submits that the order of changing the month of increment was passed without affording an opportunity of hearing. The contention is that there was nothing on record to prove that LWP was not for medical reason. It is argued that SI was wrongly withdrawn. The juniors were getting higher pay and the petitioner should have been given stepping up in pay.

4. Per contra, the month of increment was changed as per the Rules. The petitioner availed five hundred days of LWP. The submission is that withdrawal of the increment had affected the grant of SI which juniors of the petitioner had got earlier having fulfilled the condition stipulated in rules.

5. It is admitted position that as per rule, LWP except availed on medical ground is to be excluded while computing service period for grant of increment. Further that SI is to be granted after completion of one year from the grant of last increment which the petitioner was not fulfilling due to change in the month of increment.

6. The petitioner filed the OA after four years of passing an order granting LWP. No document was produced either before the Tribunal or before this Court to substantiate that LWP was availed on medical ground. The record pertaining to LWP of the petitioner was weeded out as per the rules. On failure to set up a case that the record was weeded out after filing of the OA by petitioner, the Tribunal rightly rejected the contention of petitioner that during pendency of the OA record should not have been weeded out.

7. The contention that no evidence was produced by the respondent to show that LWP was not on medical ground, is ill- founded. The negative onus cannot be casted upon the respondents. It was for the petitioner to stand on its own legs and at least prima facie establish that the LWP was on medical ground. The petitioner after four years made a bald statement that LWP was to be excluded. The delay of four years in filing OA caused impediment for determination of grievance as in intervening period the record was weeded out as per rules.

8. The contention that the order changing the month of increment was passed without granting an opportunity of hearing, at first glance appears attractive but lacks merit. There cannot be quarrel with the proposition that the matter should not be mechanically remanded for violation of principles of natural justice for a mere formality. The Supreme Court in the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati and Others reported in [(2015)8 SCC 519] held:-

“40. In this behalf, we need to notice one other exception which has been carved out to the aforesaid principle by the courts. Even if it is found by the court that there is a violatio