ORDER
Shanker Raju, Member (J)
1. An order passed on 16.12.2003 whereby the period of overstay on foreign assignment w.e.f. 21.12.2002 to 6.7.2003 has been treated as dies non without any service benefits, including eligibility service for promotion, qualifying service for pension, etc. A representation preferred against it has been disposed of by a non-speaking order on 27.8.2004
2. It is trite that before any civil consequences ensue upon a government servant, he has a right to be accorded a reasonable opportunity of being heard, which is not only in consonance with the fairness but also audi alteram partem, a principle contained in the principles of natural justice.
3. As per FR 17-A, before the period of absence has been treated as dies non, a reasonable opportunity has to be given. This has been decided on the basis of a decision of Allahabad High Court and by adopting the OM of DOPT dated 20/23.5.1988, which is reproduced as under:
(1) Reasonable opportunity to be given before invoking the penal provisions. – FR 17-A provides that a period of an unauthorized absence in the category of cases mentioned therein, shall be deemed to cause an interruption or break in the service of the employees, unless otherwise decided by the competent authority for certain purposes. An order passed by the P & T authorities in the case of some of their employees, invoking FR 17-A was struck down by the Lucknow Bench of Allahabad High Court on the ground that issue of such an order without giving a reasonable opportunity of representation and being heard in person, if so desired, to the person concerned, would be against the principle of natural justice. The question of amending FR 17-A as also Rule 28 of the CCS (Pension) Rules and SR 200 is under consideration in consultation with the Ministry of Law.
2. The above position is brought to the notice of all Ministries/Departments so that if there are occasions for invoking FR 17-A, etc., they may keep in mind the procedural requirement that an order under FR 17-A, etc., should be preceded by extending to the person concerned a reasonable opportunity of representation and being heard in person if so desired by him/her.
4. If one has regard to the above, we do not find on record any valid compliance of the aforesaid OM. As such the applicant has been deprived of a reasonable opportunity before treating the aforesaid period as dies non, which has caused civil consequences.
5. Accordingly, we find that though the quasi judicial authority or even an administrative authority, when functions, its order will be treated as a reasoned one only when it shows consideration. Non-speaking order is a sine qua non of non-application of mind.
6. In the result, for the foregoing reasons, OA is partly allowed. Impugned orders are set aside. Matter is remanded back to the respondents to act in accordance with law and keeping in light our observations made above, after according the applicant a reasonable opportunity. No costs.