dofp2024_00812 — Break in service entry in service record of the Applicant without taking his views is not permissible. As a consequence, the Applicant is entitled for pension barring the period which is treated as extraordinary leave due to his not getting sanction for such periods of absence

Break in service entry in service record of the Applicant without taking his views is not permissible. As a consequence, the Applicant is entitled for pension barring the period which is treated as extraordinary leave due to his not getting sanction for such periods of absence — The Applicant was not granted pension as his service record had breaks due to unauthorized absence, which led to non-sanctioning of pensionary benefits. However, the Tribunal found that the Responden... — Facts :Applicant who joined as LDS under Respondents on 23-4-1973, was promoted as Inspector on 12-12-2003 and retired on superannuation on 31-3-2013. Even though his pension papers were forwarded to Commissioner of Income Tax, R-3 herein, no action was taken to fix his pensionary benefits inspite of his efforts. Earlier he filed O.A. No. 343 of 2014 for grant of final settlement. Deputy Commissioner of Income Tax, R-5 herein informed the Applicant that there is break in service for which he should have approached for condonation. As the office of CIT (TDS) has nothing to do in this case, his papers had been sent to CCIT vide Office Letter, dated 30-9-2013. Principal Chief Commissioner of Income Tax, R-2 herein, had passed an Order, dated 31-7-2014 (A/7) rejecting the case of Applicant for pension. The main reason for rejection is his absence without authorization during different spells, as leave is not a matter of right and one can proceed on leave after sanction. The Applicant's remaining period of service on the date of his retirement on 31-3-2013 is less than 10 years and hence he is not entitled for pension as per CCS (Pension) Rule and the Applicant did not take any step for regularizing the unsanctioned leave before retirement. Hence the orders of the department is challenged in this OA on the grounds that non-disbursement of pensionary benefits is illegal, break in service in the service period of the Applicant after 11 years, is illegal, break in service as per FR 17-A is to be entered after getting the reply to the notice issued to him. Respondents had filed their reply justifying their orders. Respondent No. 9, Commissioner of Income Tax passed the order "all unauthorized absence should be treated as leave without pay. There should be break in service book. Thereafter, records entry may be made in the service book". It is further said that break in service book of the Applicant was not rectified by the Applicant and it is not the mistake of Respondents. Tribunal heard both sides. It is unfortunate that the Respondents have not treated a period of service of the Applicant as "break in service" which has implication of forfeiture of his past services in view of Rule 27 of the CCS (Pension) Rules, 1972 which is reproduced in the judgment. Break in service of the Applicant implies forfeiture of past service of the Applicant. Government of India's Decisions (1) and (2) below Rule 28 of the CCS (Pension) Rules, 1972 is extracted which states that a reasonable opportunity of representation and being heard in person should be given before forfeiture of service. Provisions of giving opportunity to the Applicant before treating the period of absence as break in service is not given. Rule 59 of CCS (Pension) Rules, 1972 provides for verification of service of retiring employee prior to the date of retirement. The Head of the Office should give an opportunity two years before retirement. Rule 59 is extracted for clarity. Nothing is stated in the reply regarding following of Rule 59. Applicant is also not communicated regarding his break in service 10 months prior to his retirement date for the Applicant to take action as per Rule. In view of the above lapses, the Tribunal held: