ORDER
A.K. Misra, Member (A)
1. The applicant of this O.A. has prayed for issue of directions for setting aside the impugned order dated 19th October, 2001 and 13th October, 2001 contained in Annexures No. A-19 and A-21 and further for directing the respondents to pay the sum of Rs. 76,793/- representing the pay and allowances for a period of 78 days wrongfully and illegally deducted from the retirement gratuity of the applicant. It is also prayed that directions be issued to the respondents for setting aside the impugned orders dated 30.5.2001 and 22.6.2001 as contained in Annexure No. A-14 and A-17 regarding treating of the period between 28.5.2001 to 1.6.2001 as dies non.
2. Learned Counsel for the parties have been heard and pleadings on record have been perused.
3. As per Annexure A-19 dated 19.10.2001 to the amendment application, the applicant was found not to have signed the attendance register for 73 days between 21st March, 2001 and 23rd September, 2001. The said annexure contains a recital to the effect that since the applicant had not signed the attendance register, it shows that he was absent from duty during a total period of 73 days between 21st March, 2001 and 23rd September, 2001. It was also stated in this annexure that the applicant may submit his application/ representation within 3 days failing which the entire period of 73 days during which the applicant had not signed the attendance register would be treated as leave without pay. Annexure S-1 dated 25/29.10.2001 to the objections dated 15.3.2002 filed on behalf ofthe respondents against the application for amendment states that since no leave application has been received from the applicant for the period of 73 days, the said period shall be treated as leave without pay. Accordingly by office memorandum dated 3.10.2001 (Annexure A-21) a recovery of pay and allowances for 78 days amounting to Rs. 76,793/– out of the gratuity payable to the applicant was ordered. The period of 78 days comprised 73 days on which the applicant had not signed the attendance register and was accordingly treated as absent from duty, and a period of five days from 28.5.2001 to 1st June, 2001 treated as dies non. Thus the only issue for consideration in this case is whether the respondents were justified in treating the period of 73 days as leave without pay for not having signed the attendance register and the period of five days between 28.5.2001 and 1.6.2001 as dies non.
4. In so far as the period of 73 days treated as leave without pay is concerned, the only reason for treating the said period as leave without pay on account of absence from duty is the failure of the applicant to sign the attendance register for these days. The applicant admittedly is a grade G Scientist in the pay scale of Rs. 18,400-22,400 and the Director, ITRC admittedly though the administrative head, is also in the same grade. Extracts of various months of the attendance register have been filed on behalf of the applicant and also on behalf or respondents to show that the applicant had not signed the attendance register on various dates between March, 2001 and September, 2001. The extracts for the month of March, 2001 of the attendance register show that the name of the applicant or the name of the Director, ITRC is not shown in the attendance register which prima facie, indicates that neither the director, ITRC nor the applicant was required to put his signature in the attendance register. The names of other staff members who were required to put their signatures in the attendance register figure in the extracts of the attendance register for the month of March, 2001. Further though the period of absence from duty has been worked out between 21.3.2001 and 28.9.2001, it is seen from the extracts of the attendance register that even prior to 21st March, 2001 though the applicant had not signed the attendance register, he had not been treated as absent from duty on any date prior to 21.3.2001. It is also seen from the extracts for the month of March, 2001 that though the attendance register contains a column for arrival and a separate column for departure, the applicant has signed on certain dates in the arrival column only and on certain dates, in the departure column only. The signatures of the applicant in the attendance register are in the form of his initials only. The applicant has not signed the attendance register in both the columns indicating his arrival and departure from the office on any date in the month of March. Besides the extracts of the attendance register from the month of March, 2001 also show that on certain dates, the applicant has put his initials in the attendance register either in the arrival column or in the departure column and on certain others dates, the applicant has not put his initials. On dates, on which the applicant has not put his initials the attendance register has been initialed by the Director, ITRC Sri P.K. Seth. It is interesting to note that on the dates on which the Director, ITRC has put his initials, the applicant has not put his initials in the attendance register whereas on dates on which the initials of the applicant appeared in the attendance register, the initials of the Director, ITRC do not appear. Thus the attendance register for the month of March, 2001 clearly shows that the attendance of the staff whose names appear in the attendance register for the month of March, 2001 was only checked by the Director or the applicant both of whom as stated earlier were in the same grade. As a matter of fact in the remarks column of the attendance register in the month of March, 2001, the Director, ITRC has recorded on 21st March, 2001 that every body should write the time of signature in the attendance register. This also shows that the attendance register was put up to the Director, ITRC for checking and verification. Since the Director has not put his initials, in the register on those dates on which the applicant has put his initial, it follows as a corollary that on these dates, the attendance register was put up for checking and verification of the applicant. The extracts of the attendance register for the months of June, 2001 and July, 2001 also show the same position. Only for the month of January and Feb., 2001, the extracts of the attendance register reveal a slightly different picture in as much as on certain dates, the applicant and the direct both have signed the attendance register but here also it is interesting to note that on certain other dates only the applicant has initialled the attendance register. It is also interesting to note that in January, 2001 and Feb., 2001 whereas the applicant has initialled the register against the departure column the Director ITRC has initialled against the arrival column of the register. Neither the name of the applicant nor the name of the Director figures in the attendance register though the names of other staff members are duly shown in the register. The extracts of the attendance register for the month of April, 2001 and May, 2001 revea! the same picture as the extracts for the month of March, 2001. As already stated above, the extracts of attendance register clearly show that the applicant was not required to record his attendance in the attendance register as a token of his presence in the office in the light of the fact that his name does not figure in the attendance register. He has initialled the attendance register on certain dates and on those dates on which the applicant has not put this initials, the register has been initialled by Director, ITRC.
4(A). It is also relevant to refer to the existing Departmental instructions in the matter of recording the attendance as a token of presence in the office. On behalf of the respondents these instructions have been filed alongwith Counter reply of respondent No. 1 and 2 as Annexure No. R-2 to R-12. We have gone through these instructions from R-2 to R-12 and we have noticed that except the instructions dated 29.8.95 (R-5) none of the other instructions apply to officers and scientists. All the instructions except instruction No. R-5 apply exclusively to the staff members whose attendance and punctuality is to be checked by the senior officers. Instructions annexed as annexure No. R-5 to the counter of respondents No. 1 and 2, no doubt, provide that the instructions relating to punctuality and discipline are applicable to all sections of employees irrespective of their posts or status and further that all staff members including scientists and officers will mark their attendance in the attendance register indicating their time of arrival and departure. Further all the instructions issued prior to 27.8.95 or those issued after 29.8.95 are applicable exclusively to staff members alone. Therefore at least instructions issued subsequent to the instructions dated 29.8.95 (R-5) have to be construed as superseding the instructions dated 27.8.95 which was applicable to scientists and officers also. Instruction annexed at R-7 is dated 5.2.98, R-8 is dated 15.2.99, R-9 is dated April, 99, R-10 is dated June 99, R-11 is dated July 99 and R-12 is dated July 2000. All these instructions signing of attendance are applicable to only staff members and not to scientists and officers. It is not the case of the respondents that the applicant was guilty of unauthorised absence from the office. It is also not the case of the respondents that the applicant did not discharge his duties and it is also not the case of the respondents that any charge-sheet was issued to the applicant for unauthorised absence from duty or for failure to discharge his duties in the office.
4(B). Thus on the basis of the factual position discussed above in paragraph 4 and 4(A), we are of the considered view that there was no justification whatsoever in the recovery of a sum of Rs. 76,793/- out of retiral dues of the applicant for a period of 78 days. In the result Annexure No. A-19 is quashed and Annexure No. A-21 is quashed to the extent of recovery of a sum of Rs. 76,793/- as provided in the said annexure.
5. The other relief claimed in the present 0. A. as amended by order dated 23.11.2002 passed by this Tribunal in pursuance of the amendment application dated 14.1.2002 made under M.P. No. 222/2002 is for quashing the impugned orders dated 30.5.2001 and 22.6.2001 (Annexure A-14, and A-17 to the O.A.) whereby the period from 28.5.2001 to 1.6.2001 for which earned leave was applied for was treated by the respondents as dies-non. The applicant applied for earned leave for the period 28.5.2001 to 1.6.2001 by application dated 22.5.2001 but the said earned leave application was not allowed and the entire period from 28.5.2001 to 1.6.2001 (five days) was treated as dies-non for all purpose namely increment, leave and pension etc., (impugned order dated 30.5.2001). By the other impugned order dated 22.6.2001, the applicant was informed in pursuance of his representation dated 8.6.2002 that since he did not mention the out-station leave address during the period of earned leave applied for, he was requested to mention the leave address before proceeding on leave, but even then he did not do so and proceeded on leave without approval of the competent authority. Accordingly the period for which the earned leave was applied for was treated as dies non. The applicant was invited for delivering a lecture at Toxicology Workshop Organised by the Jai Research Foundation between 28.5.2001 and 31.5.2001. However, the applicant’s request for permission to participate in the Toxicology Workshop was rejected by the director, ITRC as Jai Research Foundation was a private organisation. The case of the respondents is that the applicant proceeded on earned leave for the period 28.5.2001 to 31.5.2001 to participate in the Toxicology workshop organised by Jai Research Foundation without mentioning the leave address in his application for earned leave dated 22.5.2001 even though his request in this regard had not been acceded to by the Director, ITRC. On return from earned leave, the applicant joined his duties on 4th June, 2001. The only reason for treating the period from 28.5,2001 to 1.6.2001 as dies-non was that the leave applied for by the applicant was not sanctioned by the competent authority for want of leave address. The applicant was requested to furnish his leave address on the application but in spite of such request he did not furnish the leave address. The applicant stated by letter dated 8th June, 2001 (Annexure A-15 to the O.A.) that the earned leave was applied for some personal work and in the absence of any column in the application format for giving the lave address, the applicant did not give the leave address and further that the leave was applied for personal work. The applicant also submitted in this letter that whereas he applied for leave by application dated 22.5.2001, no action was taken on his leave application till 25.5.2001 and only in the evening of 25th May, 2001 the Administration sought from him the leave address. Further it is stated that leave address was to be mentioned only when the leave was permitted and therefore no leave address was furnished in the application for leave. Further upto 25.5.2001, no action had been taken on the applicant’s leave application, after 25.5.2001, the applicant states to have given his leave address on a separate attached note. Besides by letter dated 8th June, 2001 (Annexure A-15), the applicant also informed the Controller of Administration that the omission to give leave address alone could not constitute the sole ground for not granting earned leave.
5(A). In para 15 of the objections filed on 9.7.2001, it has been stated on behalf of the respondents that the applicant’s leave application was considered by the Director, ITRC on 29th May, 2001 and decision was communicated to the applicant by Office Memorandum dated 30.5.2001 (Annexure A-14 to the O.A.). The case of the respondents is that as per leave rules, the applicant is duty bound to indicate his out station leave address while submitting his leave application if permission is sought for leaving the headquarters and further that out station address had on earlier occasions been mentioned by the applicant in his leave applications. In support of the contention that the applicant had been furnishing his leave address while availing earned leave Annexure No. 0-6 has been filed enclosing photo copies of leave applications submitted on earlier occasions. By Annexure No. 0-5, copy of instructions has been enclosed issued under Department of Personnel and Training O.M. dated 18.5.1994. As per these instructions a Member of Staff should not leave headquarters without permission of head of office and when permitted he should furnish his leave address to the head of office. It is also provided in these instructions that in all applications for leave including casual leave or compensatory leave during which an applicant proposes to leave headquarters, the fact should be stated in the application with the out-station address. The applicant has stated that no action was taken on his leave application till 25.5.2001 and it was only in the evening of 25.5.2001, that he was asked to furnish his leave address which he furnished in a separate attached note. Thus there was no occasion for the respondents to treat the entire period of earned leave as dies-non. According to the respondents the period between 28.5,2001 and 1.6.2001 has been treated as dies non because the applicant proceeded on leave and left the headquarters even though leave had not been sanctioned by the Director, ITRC and accordingly, the said period has been treated as absence from duty without prior permission. The period has been treated as dies-non in accordance with instructions No. 6 in Rule 11 of the CCS (CCA) Rules, 1965. These instructions were issued under Rule 62 of the P&T mannual Volume III and have been adopted in the CCS (CCA) Rules 1965. The case of the applicant on the other hand is that the Director, ITRC who is in the same grade as the applicant was not competent to treat the period between 28.5.2001 and 1.6.2001 as absence from duty and further that in his case, FR-17-A which are statutory rules shall apply and not instruction No. 6 to Rule 11 of the CCS (CCA) Rules, 1965. It was further submitted on behalf of the applicant that FR-17 would apply as against the said instruction No. 6 as adopted in the CCS (CCA) Rules, 1965 because FR 17-A is a statutory rule and would over ride the instruction No. 6 to Rule 11 of the CCS (CCA) Rules, 1965. The relevant provisions of FR-17-A read as under:–
“Without prejudice to the provisions of Rule 27 of the Central Civil Services Pension Rules, 1972, a period of unauthorised absence:–
FR-17-A–In the case an individual employee remaining absent unauthorisedly or deserting the post shall be deemed to cause an interruption or break in service of the employee unless otherwise decided by the competent authority for the purposes of LTC, quasi permanency and eligibility for appearing in the departmental examination for which a minimum period of continuous service is required;
Exp. 2–In this rule the term competent authority means the appointing authority.
The relevant provisions of instruction No. 6 Rule 11 of the CCS (CCA) Rules, 1965 reads as under:–
“Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them is subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non i.e. they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the competent authorities might take against the persons resorting to such practices.”
6. The order dated 13th May, 2001 (Annexure No. A-14) provided that the period between 28h May, 2001 and 1.6.2001 has been treated as dies-non by the Director, ITRC for all purposes namely increment, leave and pension. Instruction No. 6 of Rule 11 of the CCS (CCA) Rules as reproduced above provides that the leave sanctioning authority is empowered to treat the period of absence from duty without permission as dies-non and the said period will neither count in service nor be construed as break in service. The said rule does not authorise the leave sanctioning authority to treat the period of unauthorised absence from duty as dies-non for all purposes namely increment, leave and pension etc., as has been done by order dated 30.5.2001 impugned in the present O.A. On the contrary rule FR 17-A of fundamental rules provides that the period of unauthorised absence from duty shall be deeined to cause an interruption or break in service of the employee unless otherwise decided by the competent authority for the limited purpose of LTC, quasi permanency and eligibility in appearing in the departmental examiantion. The competent authority has been defined in this rule as the appointing authority. Thus the order dated 30.5.2001 passed by the Director, ITRC who was the leave sanctioning authority suffers from an infirmity in as much as by the said order the period has been treated as dies-non for all purposes namely increment, leave and pension etc. This order which prima-facie appears to have been passed under instruction No. 6 to rule 11 of the CCS (CCA) Rules, 1965 by the leave sanctioning authority cannot be sustained for the simple reason that these instructions issued under P&T mannual volume III do not authorise the leave sanctioning authority to treat the period of unauthorised absence as dies-non for purposes of increment leave and pension etc. On the contrary Rule FR 17 provides for limited purposes specified in the said rule as reproduced above that the period of unauthorised absence may or may not be deemed as break in service by the competent authority. FR 17-A is a statutory rule and therefore would appear to over-ride instruction No. 6 of Rule 11 of the CCS (CCA) Rules, 1965. Thus the period of unauthorised absence could be treated as dies-non under FR 17-A only by an order of the competent authority who is defined as the appointing authority under explanation-2 of the said rule. The order of dies-non having been passed by the Director, ITRC who was not the appointing authority of the applicant was therefore without jurisdiction as the applicant’s appointing authority is the President of the CSIR. Thus both the O.Ms. dated 30.5.2001 (Annexure A-14) and O.M. dated 22.6.2001 (Annexure A-17) whereby the order of dies-non was passed by the Director, ITRC were without jurisdiction as the competent authority as defined in FR 17-A in the case of the applicant was the president of CSIR and not the Director, ITRC. As already stated the provisions of FR 17-A would over-ride instruction No. 6 of Rule 11 of the CCS (CCA) Rules, 1965. Thus the O.Ms, dated 30.5.2001 and 22.6.2001 treating the period between 28.5.2001 and 1.6.2001 as dies non in our view are liable to be quashed. It is also seen that as per O.M. dated 20.10.2001 (Annexure A-21) to the amendment application. The recovery of pay and allowances for 78 days includes the period of five days between 28.5.2001 to 1.6.2001 which have been treated as dies-non. Neither under instruction No. 6 to Rule 11 of the CCS (CCA) Rules nor under rule FR-17 A, the period of unauthorised absence treated as dies-non could result in deduction in salary for the period which has been treated as dies non -unless such a period is deemed as break in service. The O.M. dated 30.5.2001 does not contain a recital that the period of unauthorised absence would be treated as break in service.
7. In the light of the observations made in paragraph Nos. 5, 5-A and 6 O.Ms, dated 30.5.2001 and 20.6.2001 treating the period between 28.5.2001 and 1.6.2001 as dies-non are quashed.
8. In the pleadings on behalf of the respondents grounds has been taken that the O.A. is not maintainable under Rule 10 of the Administrative Tribunal (Procedure) Rules, 1987 as plural remedies have been claimed in the O.A. As per the amendment sought under M.P, No. 222/2002 which was allowed by order dated 23.1.2002 only two reliefs survive in the O.A. The first relief relates to payment of salary and allowances amounting to Rs. 76,7937 – for 78 days and other for setting aside the orders treating the period between 28.5.2001 and 1.6.2001 as dies-non. The two reliefs claimed in the amended O.A. do not constitute plural remedies and therefore are not hit by the provisions of Rule 10 of the CAT (Procedure) Rules, 1987 because the period of 5 days between 28.5.2001 and 1.6.2001 treated as dies-non is included in the period of 78 days for which salary and allowances were recovered from the applicant out of his retirement gratuity. For this simple reason, the two reliefs are interconnected and consequential.
9. Having regard to the observations made above in the paragraph Nos. 4 to 6, the O.A. is disposed of with the following direction:–
(a) The period between 28.5.2001 and 1.6.2001 shall not be treated as dies-non and salary for this period of five days shall be paid to the applicant by the respondents along with interest @ 9 per cent per annum from November, 2001 till the date of actual payment;
(b) Salary for the period of 73 days deducted vide order dated 19.10.2001 from the gratuity payable to the applicant shall also be paid to the applicant along with interest @ 9% per annum from 1st November, 2001 till the date of actual payment of the entire salary for the period of 73 days as specified in the order dated 19.10.2001 (Annexure A-19).
10. The above directions shall be carried out within a period of three months from the date of receipt of this order. In case compliance is not made within the aforesaid period of three months, interest shall be paid @ 12% per annum after the expiry of the period of three months till the date of actual payment.
11. The O.A. is allowed as above without any order as to costs.