24 Oct 2023 10:45 AM GMT
The Kerala High Court recently observed that the unauthorized absence of an employee will be counted as non-duty for all purposes, except for the purposes of pension. Justice Anu Sivaraman added that the treatment of unauthorised absence as "non-duty for all purposes except pension" has a clear implication: it cannot be counted for seniority.“Ext.P3 order was passed on 08.02.2016 and it...
The Kerala High Court recently observed that the unauthorized absence of an employee will be counted as non-duty for all purposes, except for the purposes of pension.
Justice Anu Sivaraman added that the treatment of unauthorised absence as "non-duty for all purposes except pension" has a clear implication: it cannot be counted for seniority.
“Ext.P3 order was passed on 08.02.2016 and it was found that the 5th respondent was unauthorisedly absent from 01.05.2015 to 18.05.2015 and penalty of censure was also imposed on the 5th respondent. Further, his absence for that period was found to be unauthorised and treated as “non-duty for all purposes other than pension”.
The Court thus directed the respondent (Cochin Port Trust) to consider the petitioner's claim for promotion in preference to the 5th respondent by treating unauthorized absence as non-duty for reckoning seniority. It further directed that appropriate orders be passed on revising the dates of promotion and refixing the seniority of the petitioner and 5th respondent.
The Court was considering a writ petition filed by the petitioner who lost his promotion to the post of Senior Operator cum Input/ Output Assistant to the 5th respondent who was on authorized absence for a period of eighteen days.
The petitioner, an employee of the Cochin Port Trust challenged the denial of promotion to the post of Senior OCIOA. As per the Recruitment Rules of 2016, the post of Senior OCIOA was to be filled up by promotion from the post of OCIOA with two years of regular service or from Accountant with three years of regular service.
The petitioner was initially appointed as a Lower Division Clerk on February 19, 1996. Subsequently, he was promoted to Upper Division Clerk/Shed Clerk and then to Operator cum Input/Output Assistant on December 30, 1999. The petitioner claims that he was placed at Rank No. 4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer, while the 5th respondent was ranked at No. 12.
The petitioner contends that the 5th respondent's period of unauthorised absence from May 1, 2015, to May 18, 2015, which was treated as non-duty for all purposes except pension, made him junior to the petitioner. The petitioner filed representations to assert his claim, which were rejected. The 5th respondent was promoted to Senior OCIOA on December 1, 2016.
This was challenged by the petitioner who alleged that if the 18 days were treated as non-duty, then the 5th respondent would become junior to the petitioner and the petitioner should have been promoted to Senior OCIOA.
The Counsel for the petitioner relied upon several Apex Court decisions to state that the right to be considered for promotion was a fundamental right. Relying upon State of Punjab v. Dr.P.L. Singla (2008), it was contended that periods of unauthorized absence and non-duty cannot be taken into account for any purposes except pension. It was submitted that the period of non-duty will not be counted for the purpose of reckoning seniority as well.
The respondents submitted that as per the orders of appointment and seniority list, the 5th respondent was senior to the petitioner. It was also submitted that the 5th respondent was imposed only with censure and since the punishment imposed was not a break in the service, the said period has to be considered as duty for the purpose of seniority. It was contended that punishment of censure cannot be an impediment to promotion. It was further argued that the period which was liable to be reckoned for pension would also be counted for seniority.
The Court on an examination of the provisions of Fundamental Rules and Supplementary Rules, Central Civil Service (Pension Rules), 1972 stated that when a period of unauthorized absence was treated as non-duty for all purposes, except pension, such period will not be a break in service for the purpose of pension and the officer will not lose his lien in the post. It further noted that such a period of unauthorized absence cannot be treated as duty for any other purpose including seniority.
The Court relied upon the Apex Court decision in Dr.P.L. Singla (supra) and noted that when unauthorized absence remains unaccounted, it will result in a break in service, thereby affecting the seniority, pension, pay etc., of the employee.
It was noted that both the petitioner and the 5th respondent were considered for the post of Senior OCIOA. It noted that the 5th respondent was on unauthorized absence from 01.05.2015 to 18.05.2015 which will be counted as duty only for the purpose of pension and not for any other purposes.
“I notice that though the punishment imposed on the 5th respondent in Ext.P3 is only one of censure, there is a specific finding that the period from 01.05.2015 to 18.05.2015 was unauthorised absence and that the said period will be counted as duty only for the purpose of pension. Therefore, the only logical conclusion is that since the period is declared as unauthorised absence, the same will not be counted for any other purpose except as stated hereinabove.”
On the above observations, the Court held that the respondents shall consider the claim of the petition for promotion to the post of Senior OCIOA.
“There will be a direction to the respondents to consider the claim of the petitioner for promotion to the post of Senior OCIOA in preference to the 5th respondent, treating the period of service of the 5th respondent from 01.05.2015 to 18.05.2015 as non-duty for the purpose of reckoning seniority.”
Counsel for the Petitioners: Advocate Kaleeswaram Raj, Varun C Vijay, A. Aruna and Maitreyi Sachidananda Hegde
Counsel for the respondents: Standing Counsel S Shyam, Advocates Latha Anand, Saji Varghese Kakkattumattathil and Vinay Kumar Varma
Citation: 2023 LiveLaw (Ker) 592
Case title: Viju P Varghese v The Cochin Port Trust
Case number: WP(C) NO. 35727 OF 2019
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