As per case facts, the Petitioner was transferred but did not join his new posting, opting instead to challenge the transfer order. Though the transfer order was later cancelled, he ...
1 Judg-WP-2879-2023.doc
Mayur
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2879 OF 2023
G.N. Mohanty,
Age: 61 Years, Indian inhabitant,
303, Tejas Apartment,
Marol, Military Road, Andheri (East),
Mumbai – 400059. ...Petitioner
Versus
1. Union of India
Through its Principal Secretary,
Ministry of Civil Aviation
Rajiv Gandhi Bhavan, Safdurjung,
New Delhi – 11003.
2. Airports Authority of India,
Through its Chairman,
Rajiv Gandhi Bhavan, Safdurjung,
New Delhi – 110 003.
3. The Present Member (Operation), AAI,
Rajiv Gandhi Bhavan, Safdarjung,
New Delhi – 110 003.
4. Executive Director (HR), AAI,
Rajiv Gandhi Bhavan, Safdurjung,
New Delhi – 110 003.
5. GM (HR), CHQ, AAI,
Rajiv Gandhi Bhavan, Safdurjung,
New Delhi – 110 003.
6. Jt. GM (HR), CHQ, AAI,
Rajiv Gandhi Bhavan, Safdurjung,
New Delhi – 110 003.
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7. The then AGM (HR), WR, AAI,
C/o The Regional Executive Director,
New Integrated Operations Complex,
Airports Authority of India, New Airport Colony,
Opposite Parsiwada, Vile Parle (East),
Mumbai – 400099. ...Respondents
-----------------
Mr. Shailesh More, a/w Ms. Virakthi S. Hegde, for Petitioner.
Mr. Rui Rodrigues, a/w Ms. Gargi Warunjikar, for Respondent No.1.
Ms. Shilpa Kapil, a/w Mr. Chidanand Kapil, Ms. Vishwabharati Devkhile, for
Respondent No. 2 (AAI).
-----------------
CORAM : R. I. CHAGLA AND
ADVAIT M. SETHNA, JJ.
JUDGMENT RESERVED ON : 09 MARCH 2026
JUDGMENT PRONOUNCED ON : 02 APRIL 2026
JUDGMENT (Per Advait M. Sethna, J.):-
1.Rule. The Rule is made returnable forthwith with the consent of the
parties.
2.The Petitioner has preferred this petition under Article 226 of the
Constitution of India. The substantive relief being to quash and set aside the
Order dated 18 August 2023 (“Impugned Order” for short) by allowing the
representation of the Petitioner dated 18 May 2023 by directing the
Respondents to treat the period from 3 December 2016 to 18 September
2017 as the duty period for payment of such salary/pay and allowances
along with accrued interest at 9% p.a. for the said period.
3. The succinct issue that arises for determination in these proceedings
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is as to whether the Petitioner is entitled to salary, pay /allowances for the
period between 3 December 2016 to 18 September 2017 attributable to the
Petitioner’s absence from duty, from issuance of the Relieving Order dated 2
December 2016, after which the Petitioner’s transfer order stood cancelled
on 17 August 2017. This is to be tested on the touchstone of the order
passed by Respondent No.2 – AAI on 18 August 2023 which is assailed by
the Petitioner.
Factual Matrix:-
4.The Petitioner was initially appointed in the service of Air Traffic
Control (ATC), in the year 1986 on the post of Aerodrome Assistant.
5.Vide a transfer order dated 29 March 2016 issued by Respondent
No.2 – Airports Authority of India (“AAI” for short). The Petitioner was
transferred from Mumbai to Bhubaneshwar, by way of a routine transfer
with several other persons, his name being at Sr. No.16 of the said list.
6.Pursuant to the above, the Respondent No.2 – AAI received
representations from the persons transferred, including the Petitioners,
requesting for amendment to the transfer order dated 29 March 2016. In
this regard, the Respondent No.2 – AAI issued a communication dated 13
May 2016, referring to the transfer order dated 29 March 2016. By the said
communication, the Respondent No.2 – AAI clearly stated that request from
certain persons – AGMs/ SMs were considered but not acceded to, which
included the name of the Petitioner at Sr. No.15 of the said list.
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7.The Petitioner aggrieved by the above transfer order made a
grievance application dated 16 May 2016, addressed to the Respondent
No.2 – AAI, GRC.
8.By communication dated 22 November 2016 the grievance
application of the Petitioner dated 16 May 2016 was rejected and the
Petitioner was directed to report to his new place of posting at
Bhubaneshwar and the matter was treated as closed.
9.The Petitioner made another representation dated 1 December 2016
through the proper channel addressed to the Chairman of the Respondent
No.2 – AAI
inter alia calling upon the said Authority to cancel the said
communication dated 22 November 2016.
10.The Respondent No.2 – AAI issued a Memorandum dated 2
December 2016, with the subject bearing Annual Transfer – 2016 –
Relieving Order. The Petitioner was accordingly directed to report to the
Airport Director, Bhubaneshwar with immediate effect, reiterating that the
transfer of the Petitioner was in public interest. The Transfer Order also
recorded/noted that the Petitioner was issued readiness for the transfer
from Mumbai to Bhubaneshwar vide office letter dated 4 April 2016.
11.The Petitioner approached this Court by way of an earlier Writ
Petition No.1017 of 2017 filed on 25 January 2017 being primarily
aggrieved by the transfer and relieving orders issued by the Respondent
No.2 – AAI.
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12.In the meantime, during the pendency of the above Petition, the
Grievance Redressal Committee, AAI (“GRC” for short) addressed a
communication dated 17 August 2017 to the Petitioner. Vide the said
communication, the Respondent No.2 – AAI concluded that considering the
long service of the Petitioner and the skill set acquired for performing an
important job, interest of justice would be served if the said transfer order
dated 29 March 2016 is cancelled and the Petitioner is allowed to continue
at his present place of posting i.e. Mumbai, until the next transfer season
i.e. 2018, when his case would be considered on its own merit.
13.The earlier Writ Petition No.1017 of 2017 was listed before this Court
on several dates, resulting in passing of various orders, in the said
proceedings. By an order dated 3 May 2017 this Court observed that since
the Petitioner has not joined the place of transfer and considering that
Respondent – GRC is directed to decide the Petitioner’s representations
dated 1 December 2016 and 4 December 2016 preferably on or before 30
June 2017, the Respondent Authorities is refrained from initiating any
coercive action against the Petitioner, until the next date.
14.The above order was followed by a subsequent order dated 18
September 2017, where the Court noted the Petitioner’s prayer for releasing
the salary for the period between the relieving order and joining of the
Petitioner. This Court granted four weeks time to the Respondent No.2 –
AAI to file its reply.
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15.This Court by an order dated 5 April 2023 passed in Writ Petition
No.1017 of 2017 allowed the Petitioner to make a representation with GRC
with regard to his salary claim for the period from which the Petitioner was
relieved until the cancellation of the transfer order of the Petitioner by the
GRC i.e. on 17 August 2017 (10 months’ period as claimed by the
Petitioner). The GRC was granted four months time to decide such
representation of the Petitioner by the said order. With the said directions
the Writ Petition No.1017 of 2017 was disposed of.
16.Pursuant to the above, the Petitioner addressed a grievance letter
dated 18 May 2023 to the Respondent – GRC in regard to the non-payment
of salary/pay and allowances for the period ranging from 3 December 2016
to 18 September 2017, which the Petitioner may be entitled to.
17.The Respondent – GRC by an order dated 18 August 2023 which is
impugned in the present Petition decided the representation of the
Petitioner dated 18 May 2023. For the reasons set out in the Impugned
Order, the Respondent – GRC was of the view that the absence of the
Petitioner from 3 December 2016 to 18 September 2017 be treated as ‘
dies
non
’. Accordingly, the Petitioner was not entitled to his claim of salary/pay
and allowances for such period of unauthorized absence from work.
18.The Petitioner being aggrieved by the Impugned Order of the
Respondent – GRC dated 18 August 2023 has assailed the same by way of
the present Petition.
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Rival Contentions :-
Submissions of the Petitioner :-
19.Mr. More, learned counsel appearing for the Petitioner, has
emphatically submitted that the Impugned Order passed by Respondent No.
2 – AAI is legally untenable. It has completely misconstrued and misapplied
the applicable statutory provisions, leading to a conclusion that is without
legal basis and, therefore, deserves to be set aside by this Court.
20.Mr. More would place due emphasis on the Clauses 6.1 and 7.1 of the
AAI’s Personnel Guide, 2004, corresponding to Rules 12.6.1 and 12.7.1 of
the AAI Human Resource Policies and Procedure Manual, 2014 (for short
“AAI HR Manual 2004 & 2014”), for the sake of brevity, the relevant clauses
are reproduced which read as follows:
“6.0- Joining Time Pay and Reckoning Joining Time for increment
6.1- Joining time is regarded as duty and pay equal to the pay
drawn before relinquishment of charge in the old post is admissible
during joining time. In addition, Dearness Allowance appropriate to
the pay and House Rent Allowance and Compensatory City
Allowance as applicable to the old headquarters, are admissible.
However, permanent Travelling Allowance and Conveyance
Allowance, if any paid, are not admissible during joining time.
6.2- Joining time will count for increment in the substantive post
and the post for which pay is paid during that period. Joining time
in continuation of leave counts for increments in the time-scale
applicable to the post/posts on which the last day of leave before
commencement of joining time counts for increments.
7.0- Miscellaneous
7.1- When transfer is cancelled: When the order of transfer is
cancelled after the employee has handed over charge of the old
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post but before taking over charge of the new post, the period
intervening between the dates of handing over and taking over is
treated joining time.
7.2- Transfer at own request: No joining time is admissible. Regular
leave may be availed of to cover the period from the date of
relinquishing charge of the old post to the date of assumption of
charge of the new post. If, however, holiday(s) intervene(s)
between the date of relief at the old station and joining at the new
station, the intervening holidays may be availed as "holidays" and
the employee need not take any leave for such period. The pay for
the period so availed will be payable.”
21.Mr. More would contend that it is the above specific clauses that
governs the case of the Petitioner, and not the General Service Rules.
Accordingly, the period of the Petitioner’s absence from 3 December 2016 to
18 September 2017 ought to be treated as joining time at Bhubaneswar,
i.e., the place of transfer. In view thereof, the Petitioner is legally entitled to
salary/pay/allowances for such period in accordance with, and not in
contravention of the AAI HR Manual 2004 & 2014. Denial of salary by the
Respondents to the Petitioner has deprived the Petitioner of the right to
receive salary for the said period. The Respondents have therefore acted in
gross violation of the AAI HR Manual 2004 & 2014, without any
justification and in an arbitrary manner.
22.Mr. More would submit that the relieving order dated 2 December
2016 is illegal, as the basis for its issuance is
mala fide. This is because it
was based on a communication dated 22 November 2016 issued by
Respondent No. 2 – AAI to the Petitioner. By this communication, the
Petitioner was directed to report at Bhubaneswar, and his Grievance
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Application dated 16 May 2016 was rejected. For these reasons, the
relieving order is bad in law and could not have been issued at all by the
Respondent No. 2 in the given facts and circumstances.
23.Mr. More would then submit that none of the Fundamental Rules
(FR), as relied upon by the Respondent No. 2, deal with the situation of
cancellation or setting aside of a transfer order, which has occurred in the
present case. Thus, the reliance placed on such Rules by the Respondent
No.2 is completely misplaced and does not assist them in any manner
whatsoever.
24.Mr. More, in the above context, would place reliance on the
Comptroller and Auditor General’s decision dated 30 August 1967, which,
according to him, deals with a case of cancellation of transfer similar to the
AAI HR Manual 2004 & 2014. The said decision also states that the period
between the date of handing over charge of the old post and taking over the
same post again, on account of the cancellation of the transfer order, should
be treated as joining time. Even on this ground, the Petitioner is entitled to
salary/pay/allowances for the said period.
25.Mr. More would submit that the deponent of the Affidavit in Reply
filed by the Respondent No.2 has deliberately suppressed the fact that the
Petitioner was never under suspension at any point in his career. Therefore,
suspension is not the only scenario wherein intervening periods between
prevention from entering office and resumption of duty in the same office
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would arise.
26.Mr. More would strenuously urge that the transfer order was
cancelled on 17 August 2017 because Respondent No. 2 – AAI was fully
aware that it was illegal. Therefore, pursuant to the cancellation of such
transfer order, the said provisions of the AAI HR Manual, 2004 & 2014 shall
become applicable, and accordingly, the Petitioner would be entitled to
salary for the period between 3 December 2016 and 18 September 2017, as
such period shall be treated as joining time.
27.Mr. More contends that the constitution of the GRC, which decided
the representation of the Petitioner dated 18 May 2023 pursuant to the
order of this Court dated 5 April 2023, is bad in law. In view thereof, the
Respondents wrongly and illegally treated the period from 3 December
2016 to 18 September 2017 as ‘
dies non’, with the intent to deprive the
Petitioner of his rightful salary, pay, and/or allowances for the said period.
28.Mr. More has contended that the Respondents erroneously applied
the principle of “no work, no pay” for unauthorized absence, thereby
denying the Petitioner’s salary for the said period. According to him, the
term “unauthorized absence” would be applicable only if the Petitioner had
been marked on the ATC duty roster and failed to perform his duties.
However, in the present case, the Petitioner was prevented from performing
his duties due to the issuance of an illegal relieving order, which was in
violation of order of ATC duty roster of December 2016. Therefore, it was
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the Respondents’ fault that prevented the Petitioner from entering the
Mumbai ATC office and performing his duties from 3 December 2016 to 18
September 2017. Hence, such findings in the Impugned Order is contrary to
Article 39(1)(d) of the Constitution of India and therefore cannot be
sustained.
29.Mr. More would place due reliance on the reply to the RTI application
submitted on his behalf by his colleague. In view thereof, Mr. More would
contend that the intervening period from 3 December 2016 to 18
September 2017 should be treated as joining time, and that the Petitioner is
entitled to salary and allowances. However, the GRC erroneously did not
consider the stand taken by the Respondent No. 2 in such reply to the RTI
application, instead relying on rules and regulations that are not applicable
to the present case.
30.Mr. More would submit that the Petitioner was always ready and
willing to perform his duties. He challenged the transfer order dated 29
March 2016 before this Court, which was ultimately set aside by an order
dated 17 August 2017. Considering the cancellation of the transfer order, it
cannot be said that the Petitioner was unauthorizedly absent from duty
from 3 December 2016 to 18 September 2017.
31.Mr. More would submit that the findings in the Impugned Order, to
the effect that the service rendered prior to unauthorized absence shall not
be counted for all purpose but the period of break shall not be counted for
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any purpose, implying that the said period shall be treated as ‘
dies non,’ are
erroneous. The Respondents ought to have relied on the specific AAI HR
Manual 2004 & 2014 applicable to the given situation.32.Mr. More would contend that the Rules and Regulations, including
the AAI (General Conditions of Service and Remuneration of Employees)
Regulations, 2003, relied upon by the Respondents have no application
whatsoever in the present factual matrix. This is in as much as, pursuant to
the cancellation order of the Petitioner, the period from 3 December 2016 to
18 September 2017 should be treated as joining time and cannot, under
any circumstances, be regarded as unauthorized absence.
33.Mr. More, in the course of his submission, has relied upon the
Affidavit in Rejoinder dated 8 October 2024 to dispute the factually
incorrect averments made by the Respondent No. 2 in their Affidavit in
Reply, according to the Petitioner.
34.Mr. More would rely on the Airports Authority of India Employees
(Conduct, Discipline and Appeal) Regulations, 2003 as notified by the
Ministry of Civil Aviation vide notification dated 9 May 2003 to submit that
the absence of the Petitioner for the period from 3 December 2016 to 18
September 2017 cannot fall within Regulation 5 of the said notification,
which deals with misconduct in any manner whatsoever.
35.Mr. More would contend that the conclusion reached in the
Impugned Order, which recommends that the period of absence from 3
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December 2016 to 18 September 2017 be treated as ‘
dies non’, is
completely misconceived and untenable. Considering the specific provisions
of the AAI HR Manual 2004 & 2014, which treat such a period as joining
time, it can never be considered as ‘
dies non’. Therefore, this finding is
entirely contrary to the AAI HR Manual 2004 & 2014 and cannot be
sustained.
36.For all of the above reasons, Mr. More would urge that petition be
allowed and the Rule be made absolute.
Submission of the Respondents :-
37.Ms. Shilpa Kapil, learned counsel for the Respondent No. 2 - AAI,
would at the outset submit that the Impugned Order is a detailed, speaking,
and reasoned order, passed after duly considering the submissions and the
case of the Petitioner in its entirety. The principles of natural justice have
been thoroughly followed in passing such an order, which is pursuant to
this Court’s order dated 5 April 2023. For these reasons, the Impugned
Order warrants no interference and deserves to be upheld.
38.Ms. Kapil has strongly supported the Impugned Order and the
reasonings recorded therein. She has placed due reliance on the Affidavit-
in-Reply dated 6 March 2024 filed by Respondent No.2-AAI.
39.According to Ms. Kapil the Impugned Order in light of the reasons set
out therein has correctly treated the period from 3 December 2016 to 18
September 2017 as ‘
dies non’ on account of unauthorized absence of the
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Petitioner. The said Order is passed by the Respondent following the due
procedure, in reaching to such conclusion.
40.Ms. Kapil would contend that for such unauthorized absence the
Petitioner cannot be entitled to any salary/pay and allowances. She would
gainfully rely on the ‘No Work No Pay’ principle as she would contend that
the Petitioner has remained absent without approval/sanction for the said
period and as he has not worked, he cannot claim any salary and/or
pay/allowances for such period.
41.Ms. Kapil would submit that, Petitioner was booked in a CBI case. On
the recommendation of the CBI, a charge-sheet dated 18 August 2023 was
issued to the Petitioner for unauthorizedly shifting furniture from Imphal to
Kolkata for personal gain. Thereafter, another charge-sheet was issued vide
a memo dated 3/8 December 2014 for the alleged irregularities committed
by the Petitioner at the terminal management of Imphal Airport.
42.Ms. Kapil would thus urge that the petition is devoid of merit and
same ought to be dismissed by discharging the Rule.
Analysis:-
43.We have extensively heard the parties. With their assistance, we have
carefully gone through the pleadings on record, including the affidavit-in-
reply of the Respondent No.2 dated 6 March 2024 followed by the Affidavit-
in-Rejoinder of the Petitioner dated 8 October 2024.
44.At the very outset, we may observe that the Impugned Order is
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passed in due compliance with the order of this Court dated 5 April 2023,
in WP No.1017 of 2017. It is a reasoned/speaking order where the second
Respondent/GRC has duly considered the representation/grievance
application of the Petitioner dated 18 May 2023, exhaustively and in detail.
45.The contention of Mr. More that the name of the Petitioner was not
on the duty roster, and therefore the Petitioner’s absence cannot be treated
as unauthorized, is flawed. The Petitioner, as per the settled legal position,
was legally obligated to report to the place of transfer in Bhubaneswar
immediately upon issuance of the transfer order. The Petitioner failed to do
so, without any legal or other impediment preventing him from joining the
place of transfer, i.e., Bhubaneswar. He cannot, therefore, take advantage of
his own wrong (
Nullus commodum capere potest de injuria sua propria) by
contending that his name was not on the duty roster. The Petitioner was not
in a position to visualize at the time of issuance of the transfer order that
the same would be eventually set aside. That cannot be an excuse/pretext
to not join the place of transfer i.e. Bhubaneshwar, pursuant to the issuance
of the transfer order dated 29 March 2016.
46.Mr. Shailesh More has placed emphasis on the AAI HR Manual 2004
& 2014 issued by Respondent No.2 – AAI. He would draw the Court’s
attention more particularly to clauses 6.1 and 7.1 r/w 12.6.1 and 12.7.1 of
the AAI HR Manual 2004 & 2014. He is at pains to submit that upon
cancellation of transfer order after the employee has handed over charge of
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the old post but before taking over charge of the new post, the intervening
period between the dates of handing over and taking over shall be treated
as joining time. However, on a perusal of the Clause 7.1 of the AAI HR
Manual 2004 & Clause 12.7.1 of the AAI HR Manual of 2014, it bears out
that the ‘joining time’ would be admissible in cases where an employee,
hands over charge and then joins the new place of posting. Accepting such
plea of the Petitioner, would lead to reading down the said provisions in a
manner the law does not mandate, which we cannot countenance,
persuading us to agree with the contentions of the Respondents, in this
regard.
47.The reliance placed by the Petitioner on the response dated 24
February 2021 of the Respondent No.2 to the Application under RTI does
not assist the Petitioner. This is because as noted supra, the interpretation of
the clauses in the AAI HR Manual of 2004 and 2014 would come to the
Petitioner’s aid only if the Petitioner had actually joined the place of transfer
pursuant to handing over the charge at Mumbai, which was not done.
48.The given factual matrix demonstrates a case where the Petitioner
was absent from 3 December 2016 to 18 September 2017 without leave.
Such absence was without an application, much less permission and/or
sanction from the competent authority. Accordingly, we find substance in
the submission of the Respondent No. 2 that such period ought to be
treated as unauthorized absence, which was neither regularized nor
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sanctioned by the competent authority.
49.Contextually, it is trite law that upon transfer order being passed the
Petitioner ought to report/join such place of transfer even if it is on a
without prejudice basis and has no vested right to remain posted at one
place, as held in S.C. Saxena Vs. Union of India & Ors.
1
; The Tamil Nadu
Agricultural University & Anr. Etc. Vs. R. Agila Etc.
2
and Shilpi Bose & Ors.
Vs. State of Bihar & Ors
3
.
50.The Respondent No. 2 through their counsel are at pains to take this
Court to the notification dated 23 May 2003 issued by Ministry of Civil
Aviation viz. Airports Authority of India (General Conditions of Service and
Remuneration of Employees) Regulations, 2003 (the said “Notification” for
short). Clauses 14 and 15 of the said Notification read thus:-
“14.
Treatment of Unauthorized absence. - An employee who is
absent from duty without any authority, shall not be entitled
to the pay and allowances during the period of such absence.
The unauthorized absence of this kind, apart from resulting in
loss of pay and allowances for the period of such absence,
shall also constitute a break in service entailing forfeiture of
past service unless the break is condoned and treated as 'dies-
non' by the Competent Authority. The service rendered prior
to unauthorized absence shall not be counted for all purposes,
but the period of break itself shall not count for any purpose.
15. Consequences of unauthorized absence- The consequences of
unauthorized absence from duty which is not condoned in any
manner shall be as follows, namely ;-
(a) no pay and allowances are admissible during the period of
unauthorized absence;
(b) no increment shall be counted for the period of such
unauthorized absence;
1. 2006 SCC 9 583.
2. Special Leave to Appeal (C) Nos. 13070-13075/2022; 20 August 2024.
3. 1991 Supp (2) SCC 659.
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(c) no earned leave shall be counted for the period of such
unauthorized absence;
(d) no benefits under the Contributory Provident Fund shall be
entitled for the period of unauthorized absence; and
(e) no gratuity shall be given in the interruption in service
caused by such unauthorized absence.”
51.Reference is made to clause 13 of Regulation 10 of Airports Authority
of India (Leave) Regulations, 2003, which read as under:-
“(13)
Absence from duty after the expiry of leave, Over stay of leave and
unauthorized absence from duty. -
(a) Unless the authority competent to grant leave, extends the
leave, an employee who remains absent after his leave is
over is entitled to no leave salary for the period of such
absence and that period shall be debited against his leave
account as though it were half pay leave to the extent such
leave is due, the period in excess of such leave due being
treated as extraordinary leave.
(b) Willful absence from duty after the expiry of leave renders
an employee liable to disciplinary action.
(c) The unauthorized absence of this kind apart from resulting
in loss of pay and allowances for the period of such absence
would also constitute a break in service entailing forfeiture
of past service, unless the break itself is condoned and
treated as ‘dies-non’. If the break is condoned and treated as
‘dies non’ by the Competent Authority, the service rendered
prior to unauthorized absence be counted for all purposes
but the period of break itself will not count for any purpose
and treated as dies non unless the employee represents in
this regard.
(d) The consequence of unauthorized absence from duty, which
is not condoned, would be as follows:
(i) Pay and Allowances – No pay and allowances are
admissible during the period of unauthorized absence.
(ii) Increment – The period of such unauthorized absence
would not count for increment.
(iii) Leave – The period of such unauthorized absence would
not count for earning leave.
(iv) Contributory Provident Fund – The period of
unauthorized absence would be ignored for the purpose
of entitlement of Contributory Provident Fund benefits.
(v) Gratuity – The interruption in service caused by such
unauthorized absence would entail forfeiture of past
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service for the purpose of entitlement to gratuity.
(e) If such employee reports for duty before or after initiation
of disciplinary proceedings, he may be taken back for
duty because he has not been placed under suspension.”
52.We now refer to the relevant extract of DoPT OM No. 13026/3/2012-
Estt (Leave) dated 28 March 2013 which read as under:-
“(a)
Proviso to FR 17(1)
The said provision stipulates that an officer who is absent
from duty without any authority shall not be entitled to
any pay and allowances during the period of such
absence.
(b)FR 17-A
The said provision inter alia provides that where an
individual employee remains absent unauthorizedly or
deserts the post, the period of such absence shall be
deemed to cause an interruption or break in service of the
employee, unless otherwise decided by the competent
authority for the purpose of leave travel concession and
eligibility for appearing in departmental examinations, for
which a minimum period of service is required.”
A perusal of the Impugned Order would clearly indicate that it has
taken into consideration all of the Rules/Regulations noted (supra). The
sum and substance of the above Rules/Regulations is that the unauthorized
absence would constitute break in service which if not condoned is treated
as ‘
dies non’. Accordingly, there is no entitlement for any pay and/or
allowances during such period of unauthorized absence. Evidently, the
second Respondent-AAI, having holistically considered all of the above, has
duly applied its mind in passing the Impugned Order.
53.Ms. Shilpa Kapil has during her submissions referred to Fundamental
Rule 17(1) and its binding nature as they are framed under Article 309 of
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the Constitution of India. A perusal of the said proviso to FR 17(1)
demonstrates that an officer who is absent from duty without any authority
shall not be entitled to any pay and allowance during the period of such
absence. Further, FR 17-A clearly provides that where an individual
employee remains absent unauthorizedly or deserts the post, the period of
such absence shall be deemed to cause an interruption or break in service of
the employee. In the present facts, as noted above, the Petitioner had only
applied for a casual leave of three days after being served with the reliving
order dated 2 December 2016. Thereafter, even though the transfer order
dated 29 March 2016 was canceled by the Respondent No.2 – AAI much
belatedly on 17 August 2017, nothing prevented the Petitioner from
assuming charge, join his duties at Bhubaneshwar and actually working for
such period, so as to legally be entitled to the salary for the same.
54.In light of the clear provisions in the FR (supra) the reliance of the
Petitioner on the AAI HR Manual 2004 & 2014 is misplaced and not well-
founded. For the reasons discussed (supra), such clauses of the said AAI HR
Manual 2004 & 2014 are not applicable in the given factual matrix. The
submission of the Petitioner that specific provisions of the AAI HR Manual
2004 & 2014 prevails over the general provisions/Rules is not tenable, more
particularly considering the clear and categorical provisions enshrined
under proviso to FR 17(1), FR 17-A read with the Regulations (supra).
55.At this juncture we advert to the expression “dies non,” which, as
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defined in Black’s Law Dictionary (Tenth Edition), carries the same meaning
as “
dies non juridicus,” meaning a day exempt from court proceedings, such
as a holiday or a Sunday. The Supreme Court in
Sukhdarshan Singh Vs.
State of Punjab & Ors
4
has held that denial of salary by the competent
authority for the period to be treated as “
dies non” is not a punishment nor
a penalty contemplated in law. Accordingly, the Respondents have correctly
applied the ‘No Work No Pay’ principle in the given case for the
unauthorized absence. This would consequentially disentitle the Petitioner
from any salary/pay/allowance for such said period. In view thereof, we see
no jurisdictional infirmity or perversity in the view taken by the second
Respondent-AAI, in the Impugned Order.56.It would be apposite at this juncture to refer to the decision of the
Supreme Court in The Tamil Nadu Agricultural University & Anr. Etc
(supra). The Supreme Court was confronted with a nearly identical
situation where an employee gets transferred to another place. Instead of
joining the new place of posting they challenged the said order of transfer
while also demanding the salary for a period, they remained in
unauthorized absence. The Supreme Court in the said case, clarified that as
the transfer order was set aside by the Single Judge, their service period
shall continue to be treated in continuity. However, no salary for the said
period of unauthorized absence is to be paid to such employee except for
4. Civil Appeal Nos. 811-812 of 2022 on 3 March 2022.
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whatever other benefits that may accrue to them, due to such continuity.
57.We may now juxtapose the above to the given case. It is in similar
circumstances where though the transfer order being eventually set aside by
the Respondent – GRC the Petitioner would not be entitled to the salary for
the period of unauthorized absence from 3 December 2016 to 18
September 2017. In any event, here the Respondents have not disputed the
entitlement of the Petitioner towards his TA/DA in accordance with the
Rules, as set out in the Relieving Order issued by Respondent No.2- AAI
dated 2 December 2016.
58.A similar view to the above was taken by the Division Bench of this
Court in The Deputy Commissioner of Police Vs. Sanjay Govind Parab
5
. In
similar facts even where the transfer order was set aside, the Court held
that the Petitioner would not be entitled for any salary/pay and allowance
for the period of unauthorized absence.
59.We have considered the submission of the Respondent No. 2 that the
Petitioner was charge-sheeted on earlier occasions for the alleged
irregularities committed by him at the terminal of Imphal Airport. However,
at this stage, we are not delving into the correctness and/or otherwise of
the said submission, as it would not have a bearing on the issue that
confronts us in the present Petition.
60.We have carefully examined the contention of the Petitioner that
5. W.P No. 10200 of 2022 dated 6 September 2024.
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despite unauthorized absence no disciplinary proceeding were initiated by
the Respondents. It may not be out of place to mention that during the
pendency of the transfer order and before the same was set aside, the
Respondent authorities were directed not to take any coercive steps against
the Petitioner. This was in terms of an earlier order of this Court dated 3
May 2017 passed in Writ Petition No.1017 of 2017. In fact, in the absence
of a disciplinary/departmental proceeding, a situation does not arise where
a suspension period is to be treated as ‘spent on duty’ or not ‘spent on duty’
in accordance with the applicable Rules/Regulations,.
61.It is not the Petitioner’s case that the principle of natural justice have
been violated before the Impugned Order declaring period from 3
December 2016 to 18 September 2017 as “
Dies Non”. As noted (supra), the
Impugned Order was passed pursuant to an order of this Court dated 5
April 2023 in Writ Petition No. 1017 of 2017. In our view, this cannot be
treated as harsh or excessive in the peculiar factual complexion. Therefore,
even on such count the Impugned Order suffers from no irregularity much
less illegality warranting interference in our exercise of writ jurisdiction, in
the give factual complexion.
62.In light of the foregoing discussion, the Impugned Order has duly
considered/dealt with all issues raised by the Petitioner including those in
the Petitioner’s representation dated 18 May 2023. In view thereof, it does
not suffer from the vice of arbitrariness, lack of reasons, much less non-
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application of mind in as much as it is a speaking order, supporting the
conclusions arrived at. At this juncture, we may gainfully refer to the
decision of the Supreme Court in Raj Kishore Jha Vs. State of Bihar and
Ors.
6
. It was held that reason is the heartbeat of every conclusion. Without
the same, it becomes lifeless. The Impugned Order evidently passes such
threshold and litmus test which, for all such reasons, deserves to be upheld,
sans interference.
63.We pass the following order:-
ORDER
a) The Petition is Dismissed. The Rule is discharged.
b) No order as to costs.
[ADVAIT M. SETHNA, J.] [R.I. CHAGLA, J.]
6. (2003) 11 SCC 519)
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