By Hon’ble Mr. Anand Mathur, Member (A):

1. Learned counsel for the applicant stated as under:-

1.1 The applicant Constable (Exe.) proceeded on 7+4 days casual leave w.e.f. 27.06.2013. Although he was required to report back on duty on 08.07.2013, but during the leave period, he fell sick and visited CHC, Sampla, Rohtak on 08.07.2013 for treatment, where the doctor advised him four days medical rest. Accordingly, he telephonically informed this fact to the Duty Officer, which also finds mention in DD No.66B dated 26.07.2013.

1.2 As the applicant was not able to recover from the illness and was being advised medical rest, he kept on informing the Duty Officer on all such occasions and finally resumed his duty on 16.09.2013. The information of illness sent by the applicant is mentioned in DD entries, which are shown in the following table:-

1.3 The applicant states that treating his leave period as unauthorized, the respondents served a Show Cause Notice [SCN) dated 16.04.2015 calling upon him to show cause as to why the absence period should not be treated as period “not spent on duty” on the principle of “No work No pay”. For the sake of convenience, the aforesaid SCN is reproduced as under:-

“Constable (Exe.) Subhash, No. 1043/OD while posted at P.S. S.P. BADLI had proceeded on 7+4 casual leave w.e.f. 27.06.2013. He was due back from leave on 8.7.13. But but instead of resuming duties from leave, he telephonically informed about his illness and 04 days medical rest w.e.f. 8.7.2013. He kept on extending medical rest and was due to resume his duties on 2.8.2013 after availing 25 days medical rest without getting prior permission of the competent authority. Since he did not turn up on due date. Hence, he was marked absent vide DD No.128-B dated 2.8.13. He resumed his duties, vide DD No.103-B dated 16.09.2013, after absenting himself for a period of 45 days wilfully & un-authorizedly. This is clear violation of provisions contained in CCS (Leave) Rules, 1972 and S.O. No.111 of Delhi Police.

In this regard an explanation was called vide this Office no.11527/SIP/AC/OD dated 17.09.2014. He received the Explanation and submitted a reply in response to the explanation which was not found satisfactory.

The above act on his part amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his official duty and thus violated the provisions of S.O. No.111 of Delhi Police and CCS (Leave) Rules-1972.

He is, therefore, called upon to Show Cause Notice as to why the absence period as mentioned above should not be treated as period “Not Spent on Duty” on the principle of “NO WORK NO PAY”. His reply, if any, should reach the undersigned within 15 days from the date of receipt of this notice, failing which it will be presumed that he has nothing to say in his defense and ex-parte decision will be taken on its merit.”

1.4 In pursuance of the SCN, the applicant filed a reply and was also heard in orderly room. After considering his reply, the respondents, vide order dated 04.01.2016, decided the period of medical rest for 70 days from 08.07.2013 to 15.09.2013 to be treated as “not spent on duty”, on the principle of “no work for no pay” for all intents and purposes, and the same would not be regularized in any manner.

1.5 Aggrieved, the applicant filed representation against the aforesaid order. The said representation was decided by the respondents, vide order dated 07.03.2016, without application of mind and finding his reply not satisfactory confirmed the penalty. Hence, the applicant has filed the instant OA under Section 19 of the Administrative Tribunals Act, 1985 seeking the following main relief:-

“(i) To quash and set aside the order dated 16.04.2015, order dated 04.01.2016 and order dated 07.03.2016 whereby the representation of applicant has been rejected and to further direct the respondents to treat the period from 8.7.13 to 1.08.13 (25 days) and 2.8.13 to 15.09.2013 (45 days) total 70 days be treated as spent on duty for all intents and purposes and recovery imposed upon the applicant be restored with all consequential benefits.”

2. Learned counsel for the respondents stated as under:-

2.1 The respondents in their reply affidavit stated that the applicant proceeded on 7+4 days casual leave w.e.f. 27.06.2013. He was due back from leave on 08.07.2013, but instead of resuming his duties, he telephonically informed about his illness and 4 days medical rest w.e.f. 08.07.2013.

2.2 It is further stated that as the applicant, instead of resuming his duty on due date kept on extending medical rest, he was marked absent. He finally resumed his duty vide DD No.103-B dated 16.09.2013 after absenting himself for a period of 45 days wilfully & un-authorizedly in violation of provisions contained in CCS (Leave) Rules and S.O. No.111 of Delhi Police.

2.3 It is stated that as per Leave Rules, mere advice of doctor does not confer a right to avail medical rest as the same is required to be availed after due sanction/permission. However, if he was not in a position to send intimation himself, he should have sent information through his representative or through any fastest means of communication like FAX but he failed to do so and availed medical rest without prior permission of the competent authority. Hence, the respondents have rightly treated the period of unauthorized leave as not spent on duty on the basis of no work no pay.

3. We have heard Mr. Sachin Chauhan, learned counsel for the applicant, Ms. Sumedha Sarma, learned counsel for the respondents and perused the material on record.

4. Learned counsel for the applicant argued that even though the application for grant of leave is to be submitted well before actual leave commences but special circumstances may arise where the leave can be sanctioned by the competent authority even if the applicant has not submitted the leave application as prescribed.

4.1 It is further argued by the learned counsel for the applicant that it is not in dispute that the applicant was on continuous medical rest, but it is also true that he had regularly been reporting his illness to the respondents. Moreover, the intent of the SO is that, for leave planned to be availed, prior permission is necessary. The case of sudden illness cannot be anticipated and thus prior permission is not possible.

5. The critical issue to be considered here is whether the medical certificates produced by the applicant are genuine or not

6. Inasmuch as these medical certificates have been issued by a Government Medical Authority, the respondents could not have rejected the same. If at all they had any doubt about the authenticity of the said medical certificates, the same could have been verified from the issuing authority. Accordingly, the period of absence could have been regularized as leave due.

7. In view of the above discussion, we find merit in the OA and the same is accordingly allowed. The impugned SCN dated 16.04.2015, orders dated 04.01.2016 and 07.03.2016 are hereby set aside. The respondents are hereby directed to treat the impugned period of absence as medical or any other kind of leave due instead of treating the same as „not spent on duty‟. The applicant shall also be entitled to all consequential benefits flowing thereof.

8. No order as to costs.