Amrutha M. George v. Spices Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 8TH DAY OF AUGUST 2018 / 17TH SRAVANA, 1940** **WP(C).No. 11192 of 2018** ## **PETITIONER(S)** **AMRUTHA M.GEORGE, W/O.JOSE ANTONY, AGED 31 YEARS, ASSISTANT DIRECTOR (DEVELOPMENT), SPICES BOARD, RESIDING AT CHACKIATH HOUSE, KOONAMMAVU, ERNAKULAM - 683 518.** **BY ADVS.SRI.R.SANJITH SMT.C.S.SINDHU KRISHNAH** ## **RESPONDENT(S):** **1. SPICES BOARD, 'SUGANDHABHAVAN', N.H. BY PASS, PALARIVATTOM P.O, COCHIN-682 025, REPRESENTED BY ITS CHAIRMAN.** **2. THE CHAIRMAN, SPICES BOARD 'SUGANDHABHAVAN', N.H. BY PASS, PALARIVATTOM P.O, COCHIN-682 025.** **3. THE SECRETARY, SPICES BOARD 'SUGANDHABHAVAN', N.H. BY PASS, PALARIVATTOM P.O, COCHIN-682 025.** **BY ADV. SMT.K.RADHAMANI AMMA, S.C BY ADV. SRI.ANTONY MUKKATH, S.C** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Msd.** **WP(C).No. 11192 of 2018 (Y)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE MEMORANDUM IMPUTING ALLEGED CHARGES ON THE PETITIONER ALONG WITH THE POSTAL COVER.** - **EXHIBIT P2 TRUE COPY OF THE MEMORANDUM DATED 02.03.2018 BEARING NO. ADM/PER/20/10/4881 ALONG WITH THE POSTAL COVER. EXHIBIT P3 TRUE COPY OF THE TRACKING OF CONSIGNMENT AS AVAILABLE FROM THE WEBSITE OF THE POSTAL DEPARTMENT. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 03.08.2015 IN W.P.(C)NO. 13528/2015. EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.A. NO.1983/2015. EXHIBIT P6 TRUE COPY OF THE INTERIM ORDER PASSED IN W.P.(C)NO. 23371/2016. EXHIBIT P7 TRUE COPY OF THE MEMORANDUM BEARING NO.ADM/PER/20/10/4225 DATED 5TH JANUARY, 2018. EXHIBIT P8 TRUE COPY OF THE MEMORANDUM BEARING NO.ADM/PER/20/2010/4561 DATED 30.01.2018. EXHIBIT P9 TRUE COPY OF THE SHOW CAUSE NOTICE BEARING NO.ADM/PER/20/2010/4558 DATED 31.01.2018.** - **EXHIBIT P10 TRUE COPY OF THE REPLY DATED 12.02.2018 OF THE PETITIONER. RESPONDENT(S)' EXHIBITS :** **EXHIBIT R1(A): PHOTOCOPY OF THE LETTER NO.ADM/PER/20/2010/1457 DATED 08.08.2017 OF THE 3RD RESPONDENT. EXHIBIT R1(B): PHOTOCOPY OF THE LETTER NO.ADM/PER/20/2010/2793 DATED 05.12.2017 OF THE 3RD RESPONDENT. EXHIBIT R1(C): PHOTOCOPY OF THE LETTER NO.ADM/PER/20/2010/4027 DATED 27.12.2017 OF THE 3RD RESPONDENT. EXHIBIT R1(D): PHOTOCOPY OF THE LEAVE APPLICATION DATED 17.01.2018 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXHIBIT R1(E): PHOTOCOPY OF THE SPICES BOARD SERVICE (CLASSIFICATION, CONTROL AND APPEAL) AMENDMENT REGULATIONS, 2018 PUBLISHED IN THE GAZETTE OF INDIA 12.02.2018 NOTIFICATION NO.G.S.R.156(E) DATED 02.02.2018. EXHIBIT R1(F): PHOTOCOPY OF THE ORDER NO.8/7/2016-PLANT.D DATED 13.02.2017 OF THE ADDL.SECRETARY TO GOVT. OF INDIA.** **WP(C).No. 11192 of 2018 (Y)** **EXHIBIT R1(G): PHOTOCOPY OF THE MEMORANDUM NO.13026/3/2012-ESTT(LEAVE) DATED 28.03.2013 OF THE DEPUTY SECRETARY TO THE GOVERNMENT OF INDIA.** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.11192 of 2018-Y ------------------------------------------- _Dated this the 8[th] day of August, 2018_ ## _**JUDGMENT**_ Petitioner, who is an Assistant Director in the Spices Board is aggrieved by the action of the respondents in rejecting her application for leave not due in continuation of Child Care Leave and in proceeding with disciplinary action against her. 2. The grievance of the petitioner is on Ext.P1 memo of charge for unauthorised absence from 16.11.2017. The allegation against her is that she was not rejoining duty and was not submitting application in accordance with Rule 43 C of the Central Civil Service (Leave) Rules, 1972 (`CCS Leave Rules' for short). The petitioner seeks a direction to the respondents to grant her leave from 16.11.2017 to 22.05.2018 as per the provisions under Rule 31 GID r/w Rule 43C (6) of CCS( Leave) Rules. 3. The petitioner submitted application for child care leave under Rule 43-C for 180 days for the period from 8.7.2015 to 4.1.2016 on 30.6.2015. The respondent accorded sanction for CCL for 45 days as per order dated 4.8.2015 for the period from 9.7.2015 to 22.8.2015. After she submitted a reminder on 26.8.2015, the respondents issued order dated.21.9.2015 sanctioning CCL for another 45 days from 23.8.15 to 6.10.15. Again she submitted request on 3.10.2015 and the respondents W.P(C) Nos.11192 of 2018-Y 2 issued order dated.8.10.15 sanctioning CCL from 7.10.15 to 20.11.15. She again submitted a request on 20.10.15 based on which CCL for the next 45 days for the period upto 4.1.2016 was sanctioned on 30.11.2015. On 31.12.15 the petitioner submitted another application for CCL for 180 days from 05.01.2016 to 03.07.2016. The respondents, as per orders dated 08.01.2016, 16.03.2016, 12.05.2016 and 30.12.2016 accorded sanction for CCL for 45 days each from 05.01.2016 to 18.02.2016, from 19.02.2016 to 03.4.2016 from 04.04.2016 to 18.05.2016 and thereafter from 19.05.2016 to 03.07.2016 each after a reminder from the petitioner in between. On 30.06.2016 the petitioner submitted another application for a further period of 180 days of CCL from 04.07.2016 to 30.12.2016. After a reminder dated 03.07.2016, CCL was sanctioned as per order dated 11.07.2016, 19.10.2016 and 30.12.2016 for 30 days each from 04.07.2016 to 02.08.2016 and from 03.08.2016 to 01.09.2016 and thereafter from 02.09.2016 to 30.12.2016 for a period of 120 days. On 24.12.2016 the petitioner had submitted application for earned leave and half pay leave for a period of 93 days from 31.12.16 to 02.04.2017. The respondents sanctioned leave as per order dated 23.01.2017, for a period of 37 days from 31.12.2016 to 05.02.2017. On 01.02.2017 the petitioner submitted a reminder and thereafter on 29.03.2017 CCL was sanctioned for 56 days from 06.02.2017 to W.P(C) Nos.11192 of 2018-Y 3 02.04.2017. Another application for half pay leave and earned leave was submitted on 27.03.2017 for 46 days from 03.04.2017 to 18.05.2017. After a reminder, the respondents issued order dated 18.05.2017 sanctioning the leave. Thereafter, the petitioner submitted an application on 12.05.2017 for leave for the next spell. That application was modified on 23.07.2017 requesting for CCL for 9 days from 19.05.2017 to 27.05.2017 and leave not due from 28.05.2017 to 15.11.2017. The 9 days' CCL was sanctioned from 19.05.2017 to 27.05.17, as per order dated.08.08.2017. After submitting a reminder on 01.09.2017, the petitioner submitted another application on 06.11.2017 for extension of leave not due for 93 days from 16.11.2017 to 16.02.2018. As per order dated 05.12.2017 the request for leave not due for 172 days was rejected and thereafter the petitioner again submitted representation dated 15.12.2017 and 08.01.2018. The respondent Board as per its order Ext.P7 dated 05.01.2018 directed the petitioner to join duty within 10 days or to apply for leave of the kind due and admissible under Rule 43 C(6) of CCS Leave Rules, 1972, failing which disciplinary action will be initiated. The petitioner was reminded of the consequences of the unauthorised absence and the liability to take action against the absentees. Thereafter, Ext.P8 order was issued. 4. The petitioner submits that Ext.P7 order was issued at a time W.P(C) Nos.11192 of 2018-Y 4 when she had submitted application for leave for the period upto 16.02.2018 and her initial application for leave was from 28.05.2017 to 15.11.2017 and further application from 16.11.2017 to 15.02.2018 was already submitted on 06.11.2017. Ext.P8 order was issued on 30.1.2018 sanctioning leave not due for the period from 28.05.2017 to 15.11.2017 in continuation of her CCL. 5. The petitioner had in the meanwhile preferred another application for leave for the period from 17.02.2018 to 22.05.2018. She received a show cause notice Ext.P9 dated 31.01.2018 proposing disciplinary action against her. 6. The contention of the petitioner is that she received Ext.P9 show cause notice dated 31.01.2018 along with Ext.P8 order sanctioning leave not due for 180 days from 28.5.2017 to 15.11.2017 in continuation of CCL. Pointing out that the number of Ext.P9 show cause notice precedes the order by which the leave was sanctioned, the petitioner submits that the respondents were predetermined to initiate proceedings against her. When the show cause notice is bearing No.ADM/PER/20/2010/ **4558** dt.31.01.2018, the memorandum sanctioning leave is having the No.ADM/PER/20/2010/ **4561** dated.30.1.18. However, the show cause 5 W.P(C) Nos.11192 of 2018-Y notice refers to the order dated 30.01.2018 saying that the leave not due was not sanctioned for 172 days in continuation with CCL. It was stated that the petitioner remained away from duty and her unauthorised absence warrants disciplinary action. She was directed to submit explanation, if any, against the proposal for disciplinary proceedings. 7. The petitioner thereupon submitted Ext.P10 representation in which she stated that as per memo dated 05.01.2018 the Secretary in charge had directed her to apply for leave of the kind due and admissible under Rule 43-C(6) of CCL Leave Rules and she had thereupon modified her leave application dated 12.05.2017 and 06.11.2017 for 172 days and 93 days respectively and resubmitted the same for sanction and those applications were received in that office on 19[th] and 25[th] January, 2018. Sanction was granted for 172 days after 15.11.2017, but no orders were issued on her application for the 93 days leave. She stated that she had resubmitted the application for leave on 18.01.2018 requesting for 93 days of leave and it was sent to the Secretary in charge. But she received the show cause notice despite her application for 93 days. She pointed out that the leave applied for is admissible under Rule 43 C (6) of CCS Leave Rules and pointed out that she was on leave for the treatment of her child furnishing the treatment records of her daughter and requested to drop the 6 W.P(C) Nos.11192 of 2018-Y proceedings. She had also furnished the information she received from the Postal Department as to the delivery of the application she submitted. 8. The respondents filed a counter affidavit stating that Ext.P1 memorandum is issued initiating minor penalty proceedings against the petitioner on 12.03.2018 and therefore the writ petition is not liable to be entertained, in the light of the judgment in _**Ministry of Defence v. Prabhash Chandra Mirdha**_ (2012) 11 SCC 565. 9. According to the respondents leave is not a right to be claimed by filing a writ petition; leave not due is governed by rule 31 of CCS (Leave) Rules, 1972; the petitioner has already availed leave not due for the period from 28.05.2017 to 15.11.2017 in continuation of her CCL for 730 days; since she did not return to duty on its expiry on 15.11.2017, she does not fulfill the conditions under Rule 31 and therefore competent authority has every authority to reject the same. For sanctioning leave under Rule 31(1)(a) one of the conditions is the satisfaction of the competent authority that she has reasonable prospect of returning to duty on its expiry and it also provides a further condition that leave not due shall be limited to half pay leave which is likely to be earned thereafter and it shall be debited against such half pay leave to be earned subsequently. It is stated that the petitioner is continuing on leave from 02.07.2015 onwards; on 12.05.2017 she had W.P(C) Nos.11192 of 2018-Y 7 applied for CCL for 3[rd] year as leave not due from 28.05.2017 to 15.11.2017. By Ext.R1(a) letter dated 08.08.2017 she was informed that there is no provision for CCL for 3[rd] year and directed her to apply for leave of the kind due and admissible. But she submitted application again for CCL for 3[rd] year as leave not due on 06.11.2017 when she was again informed that it is not permissible. Exts.R1(b) and R1(c) letters were issued thereafter informing her the inadmissibility under Rule 43-C (6) of CCS (Leave). Though Ext.P7 memorandum was issued on 05.01.2018 she did not join duty or applied for leave of the kind due. On receipt of Ext.P7 memorandum she submitted her modified application for leave not due for 172 days on 17.01.2018. In Ext.R1(d) application dated 17.01.2018, leave was applied only for the period from 28.05.2017 to 15.11.2017. 172 days of leave not due was sanctioned based on the modified application upto 15.11.2017 in continuation of CCL. Ext.P9 show cause notice was issued on 31.01.2018 since the application was only for the period upto to 15.11.2017 and she remained absent thereafter unauthorizedly. Further application for leave for 93 days was received only on 19.01.2018 and for leave not due from 16.11.2017. Thereafter in her application dated 03.02.2018 she requested for leave from 17.02.2018 to 22.05.2018. The applications were rejected, since they were not in continuation of CCL. According to the W.P(C) Nos.11192 of 2018-Y 8 respondents, the application for leave not due from 16.11.2017 to 16.02.2018 was submitted only on 18.01.2018 after a lapse of more than two months of availing the leave. It is stated that as the petitioner had already availed 172 days of leave not due, in order to adjust the same it will take nearly 8 years and 6 months and therefore the application was rejected in accordance with rules under Rule 31 of CCS (Leave) Rules. It is also stated that the application for leave not due was not in continuation of CCL; it is stated that the Secretary is the competent authority to initiate disciplinary action against the petitioner. 10. On consideration of the rival contentions on both sides, I find that the question relevant to be examined is whether an application for 'leave not due' submitted by a woman employee, in continuation of CCL i.e whether the leave not due applied for by the petitioner, could have been rejected and whether in such circumstances disciplinary proceedings could have been initiated against the petitioner. 11. The petitioner has applied for leave not due in continuation of the child care leave. Sub rule 6 of Rule 43-C reads as follows: > " _(6) Notwithstanding the requirement of production of medical certificate contained in sub-rule (1) of Rule 30 or sub-rule (1) of Rule 31, leave of the kind due and admissible (including Commuted Leave not exceeding sixty days and Leave Not Due) up to a maximum of one year, if applied for,_ _**be granted** in continuation with child care leave granted under sub-rule(1)._ > _(emphasis supplied)"_ 9 W.P(C) Nos.11192 of 2018-Y Therefore, Sub rule 6 is a non obstante clause which provides for grant of one more year of child care leave as leave of any kind upto a maximum of one year in continuation of CCL granted under sub rule 1. Apart from the non-obstante clause, what is provided is : “leave not due upto a maximum of one year, if applied for, **be granted** .” Therefore, CCL and Leave not due covered by Rule 43C(6) are the entitlements of a woman employee. That cannot be said to be subject to the discretion or satisfaction of the employer, as alleged in the counter affidavit. As per the Government of India decision no.4 below Rule 31 leave not due can be granted as CCL without production of medical certificate. Rule 43-C(6) provides that “child care leave may be combined with leave of any other kind”. Government of India decision no.1 below Rule 43-C(6) provides that child care leave may also be allowed to the women employees for the 3[rd] year as leave not due without production of medical certificate and that can be combined with leave of the kind due and admissible. 12. Petitioner's application was for child care leave for the 3[rd] year which is to be granted as leave not due. Going by sub rule 6 of Rule 43-C which provides that CCL can be combined with any kind of leave and going by Government of India decision no.4 below Rule 31 that leave not due can 10 W.P(C) Nos.11192 of 2018-Y be granted as CCL without production of medical certificates it would show that the leave under rule 43-C and leave not due under Rule 43C(6) read with Rule 31 are entitlement of a woman employee for which production of medical certificate shall not be insisted, when she has to take care of her child. 13. In such circumstances the respondent Board thoroughly misinterpreted the rule by considering the application of the petitioner for leave not due in continuation of the CCL as in the case of an application for ordinary leave, which no employee can claim as of right. 14. Therefore, the contention that leave not due with medical certificate is not permissible in continuation of leave not due without production of medical leave, is also unsustainable, when petitioner's application is for leave not due for child care in continuation of what the respondents already granted, for which medical certificate is not required. From the counter affidavit it is clear that the respondents have found out a reason for denying her leave that it will take 9 years to recoup the 172 days of leave not due sanctioned to her from her future service half pay leave. The provisions contained in Rule 43-C (6) do not permit such denial of leave, taking into account clause (b) and (c) of Rule 31 on considerations of recouping the expenditure, as in ordinary leave not due other than in 11 W.P(C) Nos.11192 of 2018-Y continuation of CCL. 15. It is pertinent to note that the respondents chose to sanction 172 days of leave, in continuation of CCL without insisting production of medical certificate, correctly interpreting the very same provision. Thereafter the contention of the respondents that petitioner's application for leave for the 2[nd] spell of leave not due was not in continuation of child care leave and that it was submitted after 2 months of cessation of leave, etc. are baseless, as it is evident from Exts.R1(a) and (b) letters that she submitted her application for CCL for 3[rd] year well in time and she was re-submitting the applications in tune with the directions of the respondents. From paragraph 7 of the counter affidavit it is clear that she had submitted application for further leave not due on 6.11.2017, which they rejected and asked her to submit application for leave admissible. In paragraph 8 it is stated that application for leave from 17.2.2018 to 22.05.2018 was submitted on 03.02.2018. The respondents are also finding out several untenable grounds to reject her application, in their desperate attempt to deny leave and proceed against petitioner. 16. Even assuming that her application was defective, the said defect is liable to be rectified, interpreting the rules in favour of the women employee. Therefore, the proceedings initiated against the petitioner in 12 W.P(C) Nos.11192 of 2018-Y Ext.P1 is illegal. 17. As the memo of charge is only in respect of the alleged unauthorised absence on account of the non sanctioning of leave not due submitted by the petitioner in continuation of child care leave and since it is found that the reasons stated for rejecting the application are unsustainable, the judgments in respect of the interference with memo of charges do not apply to the circumstances arising in the present case. Though it is true as contended by the learned Senior Counsel for the respondents that the court shall not normally interfere with the memo of charge except when it is issued by an authority which is not competent, I find that the present case is not a normal case but that of a women employee who applied for child care leave for the 3[rd] year in the form of leave not due, admissible to her under Rule 43-C(6) read with Government of India decision no.4 under Rule 31 of CCS rules, there is an extra ordinary circumstance which this Court is bound to consider. 18. Therefore Exts.P1 and P2 are set aside. The application of the petitioner for leave not due for the period from 17.02.2018 to 17.05.2018 shall be considered afresh in accordance with the rules. W.P(C) Nos.11192 of 2018-Y 13 Accordingly the writ petition is allowed. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/rkc_