ups_00879 — When rules provide for disciplinary action to be taken for unauthorized absence, failure to follow the procedure goes against the case of the Respondents

When rules provide for disciplinary action to be taken for unauthorized absence, failure to follow the procedure goes against the case of the Respondents — Judgment in case Smt. Hiren Mai Mishra v. Secretary-cum-Director-General of Posts, New Delhi and others regarding compassionate appointment for a widow, where Tribunal quashes and sets aside Responde... — Facts: Consideration for compassionate appointment of the Applicant (widow of the deceased GDS BPM Subhash Ch. Mishra) is the meat of the matter. Applicant's averments are that, her husband was recruited as GDS BPM of Baradiha BO during the year 1986/ 1987 and he was illegally terminated without following any rules and regulations. Subsequently, he was given posting in the wake of the order of this Tribunal in O.A. No. 637 of 2006. The Applicant submitted that her husband was on sanctioned leave for medical treatment and expired on 26-6-2017 while still under treatment. The Applicant communicated about death of her husband and sought for appointment on compassionate ground to Respondents but the Respondents had informed her through Letter, dated 18-4-2018 that Late Shri Subash Chandra Mishra (husband of the Applicant) had no relation with the department since no information had been received from his family members for his unauthorized absence. The Applicant in response submitted a representation enclosing necessary medical documents, etc. for providing compassionate appointment but the same has not been considered. Hence the OA. The Respondents in their counter inter alia averred that the husband of the Applicant was initially appointed provisionally on substitute basis as GDS BPM Baradiha BO on 1-4-1986 against put-off vacancy and not as a regular incumbent and when the regular incumbent joined his post, husband of the Applicant was directed to join as BPM, Baluria BO but he failed to provide the required accommodation to run the post office. Then as per direction of this Tribunal, he was permitted to join provisionally as BPM, Jaynagar BO and he joined on 28-3-2008. While working as GDS BPM, the husband of the Applicant was permitted to avail leave from 9-12-2009 to 8-3-2010 on personal purpose but he did not resume his duty on expiry of leave and remained on unauthorized leave. It was through the death certificate furnished that they had come to know about his demise on 26-6-2017. But the case of the Applicant for compassionate appointment was not permissible as the husband of the Applicant was unauthorizedly absent from duty for a long period, i.e. for almost 7 years, till his death thereby ceasing to be GDS employee before his demise as per the rules contained in sub-clause (6) to Rule 7 of GDS (Conduct and Engagement) Rules, 2011. Vide Letter, dated 29-6-2012, the Applicant was called for an explanation for his absence but no reply was received from him. Hence, they prayed for dismissal of the OA. The Respondents in written instruction filed by them on 18-4-2019 had taken the stand as in the counter about the substitute appointment (provisional) of the husband of the Applicant that he was not recruited as a regular incumbent which fact was denied by the Applicant, who contended that her husband's appointment was on regular basis and any person who is recruited and renders more than 3 years of service gets alternate engagement if the original incumbent returns to his post and the Respondents were duty bound to provide the husband of the Applicant an alternate engagement which they did after order of this Tribunal in O.A. No. 637 of 2006. The Respondents filed objection to the reply filed by the Applicant but no averment has been taken in it to counter the submission of the Applicant. Since the employee i.e. husband of the Applicant has expired long ago and is not in a position to substantiate those and in absence of any averment or documents to that effect filed by the Respondents, this Tribunal does not accept the stand of the Respondents that the husband of the Applicant was not a regular GDS employee. It is the stand of the Respondents that as per sub-clause (5) of the Rule 7 of the GDS Rules : “if an ED agent remains on leave for more than 180 days at a stretch, he will be liable to be proceeded against under Rule 8 of EDAs (Service and Conduct) Rules, 1964. Leave shall not be ordinarily be availed by an ED agent at frequent intervals. If an ED agent is found to have taken leave at frequent intervals for a total period of 180 days or more in a period of one year, he shall cease to be an ED agent.” It is seen from record, that the husband of the Applicant was permitted to avail leave from 9-12-2009 to 8-3-2010 on personal purposes, therefore he was on sanctioned leave. Since he did not resume his duties on 9-3-2010, his absence was treated as unauthorized without prior permission for which he was called for explanation vide Letter, dated 29-6-2012. They had called for an explanation from the deceased employee for his long absence wherein it was mentioned that suitable disciplinary action will be taken against him. Since the husband of the Applicant had gone initially on sanctioned leave and then did not resume his duty and the leave period extended for more than 180 days at a stretch, this Tribunal finds that sub-clause (5) of Rule 7 of GDS Rules, 2011 is applicable in this case. Disciplinary proceeding should have been initiated following due procedural formalities. No documents have been filed by the Respondents to show that any disciplinary proceeding was ever initiated against the Applicant for unauthorized absence or the punishment of termination of service / disengagement has been imposed by Competent Authority. It is a well settled salutary principle that if a statutory provision provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Rules and procedures are statutory in nature and it is for the executive to implement it in letter and spirit and not deviate from it. It was imperative on the part of the Respondents to have conducted inquiry for unauthorized absence. Indeed the Respondents vide Letter, dated 29-6-2012 partly did the same. But no follow-up action seems to be have been taken with regards to that.