Allowed

Partha Sarathi Das v. the State of Tripura and Ors.

Tripura HC16 Aug 2017WP(C)/1019/2016

Case brief

AI extract

What is this about?

The High Court of Tripura examined a writ petition challenging the declaration of a 270-day absence as dies-non. While acknowledging receipt of a show-cause notice, the Court found the authority failed to distinguish the justified medical period from the unjustified period in the final order. The writ was allowed, quashing the impugned order and directing the respondent to reconsider the matter af

What did the court decide?

The impugned order declaring the petitioner absent for 270 days was quashed. The petitioner was directed to submit elaborate replies with full medical records within 15 days for the authority to recon

Partha Sarathi Das Vs the State of Tripura… — Pension and Retirement Benefits | Tripura HC (2017)

¶1

¶2

THE HIGH COURT OF TRIPURA AGARTALA

¶3

W. P.(C) No.1019 of 2016

¶4

Sri Partha Sarathi Das,

¶5

son of Sri Dhirendra Chandra Das, resident of North Srirampur, P.O. Siddhinagar, P.S. PR Bari, South Tripura

¶6

…………Petitioner

¶7

– Vs –

¶8

01. The State of Tripura, represented by the Principal Secretary, Department of School Education, Government of Tripura, P.S. New Capital Complex, District: West Tripura, PIN-799 010

¶9

02. The Director of School Education, Government of Tripura, A. K. Road, Agartala,

¶10

District: West Tripura, PIN-799 001

¶11

03. The Director of Elementary Education, Government of Tripura, A. K. Road, Agartala, District: West Tripura, PIN-799 001

¶12

04. The Chairman, Standing Medical Board, AGMC & GBP Hospital, Agartala, West Tripura

¶13

05. The Head Master, Fatikchara High School, Mohanpur, P.O. Fatikchara, P.S. Lefunga, West Tripura, PIN-799 210

¶14

…………Respondents

¶15

B E F O R E

¶16

THE HON’BLE MR. JUSTICE S. TALAPATRA

¶17

For the petitioner : Mr. P. Maishan, Advocate For the respondents : Mr. A. Sengupta, Advocate Date of hearing and delivery : 16.08.2017 of judgment and order Whether fit for reporting : NO

¶18

Judgment and Order (Oral)

¶19

Heard Mr. P. Maishan, learned counsel appearing for the

¶20

petitioner as well as Mr. A. Sengupta, learned counsel appearing for the respondents.

¶21

W. P.(C) No.1019 of 2016

¶22

Page 1 of 8

¶23

¶24

02. By means of this writ petition, the petitioner has challenged the Memorandum under No.F.4(IS-JRN-R-48)SE/E(Trg.)/ 2014 dated 07.08.2015, Annexure-P/9 to the writ petition. By the said Memorandum dated 07.08.2015, the absence of the petitioner from the duty w.e.f. 14.03.2014 to 08.12.2014 has been declared to be treated as dies-non for all purposes (i.e. pension, leave, increment etc.). Further, it has been observed that the said declaration of dies-non of the said period will not, however, entail for forfeiture of his past service prior to 14.03.2014.

¶25

03. The petitioner has challenged the said Memorandum on the ground that he was not provided with the reasonable opportunity before the said Memorandum dated 07.08.2015 was passed. However, the petitioner himself has placed with the writ petition, the Memorandum under No.F.4(IS-MNP-P-42)SE/E(Trg.)/2015 dated 01.04.2015, Annexure-P/7 to the writ petition, whereby the petitioner was asked to explain within 7 days from the date of the receipt as to why the period of absence from 14.03.2014 to 08.12.2014 shall not be treated as dies-non for all purposes (i.e. pension, increment, leave etc.) without forfeiture of his past service and further why a disciplinary action should not be drawn up against him for his unauthorised absence from duty.

¶26

04. The petitioner on 13.04.2015 had filed his reply stating that he is a physically challenged person and the medical report of the Standing Medical Board does not reflect the real state of affairs. He urged for sympathetic consideration for regularisation of his absence. It is noticeable that the petitioner did not apply for any leave nor is there any reference that he had applied for such leave.

¶27

W. P.(C) No.1019 of 2016

¶28

Page 2 of 8

¶29

¶30

However, the petitioner made an elaborate representation to the Director of School Education on 31.08.2015, Annexure-P/11 to the writ petition, after the said impugned order dated 07.08.2015 was passed. According to him, the said order is nothing but a major punishment on the basis of alleged misconduct, but without any inquiry as contemplated under CCS (CCA) Rules, 1956. He urged for regular disciplinary proceeding in the matter either under Rule 14 & 16 of the CCS (CCA) Rules, 1956. But in the said representation, except that ground, he had not raised any other ground. What was left there to be enquired into, when the petitioner had not even disputed his period of absence? The petitioner has not applied for the leave against the leave credited in his leave account. In response to the said representation dated 31.08.2015, the Director of School Education has replied inter alia as under:

¶31

“The aforesaid matter has been carefully examined and observed that a show cause memo dated 01-04-2015 was issued to Sri Das, G/T giving him an opportunity to explain his stand but the reply was not convincing and there is no reasonable ground to consider his prayer as the period of absence w.e.f. 14-03-2014 to 08-12-2014 is not justified on medical ground as per the opinion of the Standing Medical Board. Hence the prayer is regretted.”

¶32

05. Again, the petitioner in another representation has prayed for review of the said decision as taken by the Director of School Education on 07.12.2015, Annexure-P/13 to the writ petition. There is no dispute that the petitioner was referred to be examined by the Standing Medical Board. The Medical Board by their report dated 27.03.2015 had opined in the following terms:

¶33

“After careful examination it is found that he could not produces proper treatment document, so his 270 (two

¶34

W. P.(C) No.1019 of 2016

¶35

Page 3 of 8

¶36

¶37

hundred seventy) days leave w.e.f. 14-03-2014 to 0812-2014 is not justified.”

¶38

06. Mr. P. Maishan, learned counsel appearing for the petitioner has submitted that the respondents ought to have instituted a proper inquiry affording the reasonable opportunity to the petitioner (1) to rebut the opinion of the Medical Board and (2) to place the other materials justifying the absence. Mr. Maishan, learned counsel has submitted that indeed the petitioner applied for leave on medical ground but those were not allowed by the respondents.

¶39

07. Mr. A. Sengupta, learned counsel appearing for the respondents has stoutly argued that for having commuted leave sanctioned by the competent authority, the employee shall satisfy that he required those leave on medical ground bona fide and for this purpose the illness certificate is an essential document. When the petitioner, as it surfaced, submitted the leave application/petition, with some prescriptions, a doubt visited the respondents and they referred the matter to the Standing Medical Board for examination of the medical records. On examination, they gave their opinion. The Standing Medical Board by giving their opinion has clearly opined that such long leave was not justified in the circumstances. FR 17 A provides the competent authority an arm to declare any period of unauthorised absence when it is found that the employee concerned was responsible for such interruption in service. Rule 24 of TCS (Leave) Rules, 1986 is a parallel provision to FR 17 A which provides as under:

¶40

W. P.(C) No.1019 of 2016

¶41

Page 4 of 8

¶42

¶43

“(1) Treatment of wilful absence from duty not regularized. – Wilful absence from duty, even though not covered by grant of leave does not entail loss of lien. The period of absence not covered by grant of leave shall have to be treated as “dies non” for all purposes, viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its powers under Article 421, Civil Service Regulations [now Rule 27 of the CCS (Pension) Rules] to treat the period as leave without allowance, the entire past service will stand forfeited.”

¶44

08. From the reading of the impugned order, it appears to this court that the order of dies non has been passed under the said note appearing below Rule 24 of Tripura Civil Services (TCS) (Leave) Rules, 1986. This court had on earlier occasions held that before taking such action the employee concerned is entitled to get a reasonable opportunity to have his say. If the reasonable opportunity is not granted, such order can be treated as arbitrary and be interfered with but in this case what this court finds that the showcause notice was issued and the employee submitted his explanation. Subsequently, also he had filed the representation which was considered and rejected by the Director of School Education.

¶45

09. What Mr. Maishan, learned counsel has submitted that he was entitled to the commuted leave on medical ground but those ‘applications’ were not considered. There cannot be any amount of doubt the leave sanctioning authority has to be satisfied that the leave was actually required for the illness and medical intervention. There is no right to enjoy the leave at the option of the employee. Right to enjoyment of leave is a contingent right. Mala fide omnibus as pleaded against the Standing Medical Board is not tenable in the

¶46

W. P.(C) No.1019 of 2016

¶47

Page 5 of 8

¶48

¶49

context. The Standing Medical Board has clearly opined that on scrutiny of the medical records (prescriptions etc.) as produced by the petitioner, they are of the opinion that such a long period was not required. But they have also not stated what amount of period would be justified. It was the duty of the leave sanctioning authority, the Director of School Education, to seek further clarification from the Standing Medical Board about the period that would have been required for recuperation from the illness as stated by the petitioner. Indulgence cannot, all the time, be termed as ‘deliberate’.

¶50

10. Without carefully reading the report of the Standing Medical Board, the entire period has been treated as not required for the medical purpose. But from a keen reading of the report of the Medical Board, this court is of the view that some period was required for his recuperation on the basis of the medical records as produced. This aspect of the matter was supposed to be considered by the Director of School Education while passing the impugned order.

¶51

11. As a result, this court is of the view that the matter requires further enquiry and the petitioner shall further be given an opportunity to lay all the medical reports justifying the entire long period of 270 days i.e. from 14.03.2014 to 08.12.2014. The petitioner may submit an elaborate reply in this regard to the Director of School Education within a period of 15 days from today. It is needless to say, the medical records as produced to the Standing Medical Board shall be enclosed with the said petition. The Director of School Education, thereafter, will obtain the further opinion of the Standing Medical Board on the basis of those records

¶52

W. P.(C) No.1019 of 2016

¶53

Page 6 of 8

¶54

¶55

how much of the period can be sanctioned as leave. The remaining period of the absence, if not covered by the proper medical records, is left to be decided by the Director of School Education afresh. It is needless to mention that no further show cause or inquiry is required. If it is found that the petitioner could not satisfy or explain the said delay supported by proper records, the Director of School Education will be within his authority to pass the appropriate order having regard to the provisions of law. The Director of School Education shall also remain with his authority to allow the absence to be adjusted with the leave credited in the leave account of the petitioner. Be that as it may, the entire matter has clearly been left to the discretion of the Director of School Education but that discretion shall be exercised in terms of the provisions of the TCS (Leave) Rules, 1986.

¶56

12. Having held so, the impugned order dated 07.08.2015, Annexure-P/9 to the writ petition, stands quashed for paving the way for such reconsideration. The respondent No.2 is further directed to complete the entire exercise within a period of two months from the date when the petitioner shall submit the representation, as stated above. Till then, no further action against the petitioner shall be taken. If it is found that the petitioner has explained the absence properly, the petitioner shall, needless to say, be entitled to all the benefits that have been withheld.

¶57

In the result, the writ petition stands allowed to the extent as indicated above and disposed of. There shall be no order as

¶58

to costs.

¶59

W. P.(C) No.1019 of 2016

¶60

Page 7 of 8

¶61

¶62

Copy of this judgment and order be furnished to the learned counsel for the petitioner and the respondents for their use.

¶63

JUDGE

¶64

¶65

W. P.(C) No.1019 of 2016

¶66

Page 8 of 8

Partha Sarathi Das v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

Partha Sarathi Das v. the State of Tripura and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Abdul Haque Vs the State of Tripura and Ors.

Khagendra Ch. Deb Vs the State of Tripura and Ors.

Rajmohan Debnath Vs the State of Tripura and Ors.

Tapasi Ghosh Saha Vs the State of Tripura and Ors.

Ruma Gan Bardhan Vs the State of Tripura and Ors.

Mallika Datta Vs the State of Tripura and Ors.