Period Of ‘Unauthorized Absence’ Cannot Be Treated As Duty For Any Purpose Including Seniority If It Is Treated As ‘Non-Duty’ For All Purposes Except Pension: Kerala HC

Emphasizing that there is a clear distinction between a person who holds a lein to a post and a person who is deemed to be on duty in the post, the Kerala High Court ruled that when a period of unauthorized absence is treated as ‘non-duty’ for all purposes except pension, the consequence would be that the period will not constitute a break in service for the purpose of pension and the officer will not lose his lein in the post. However, he cannot treat the period as duty for any other purpose including seniority.

A Single Judge Bench of Justice Anu Sivaraman observed that “though the punishment imposed on the 5th respondent in Ext.P3 is only one of censure, there is a specific finding that the period from 01.05.2015 to 18.05.2015 was unauthorized absence and that the said period will be counted as duty only for the purpose of pension. Therefore, the only logical conclusion is that since the period is declared as unauthorized absence, the same will not be counted for any other purpose”.

Advocate Kaleeswaram Raj appeared for the Petitioner, whereas Advocate Latha Anand appeared for the Respondent.

As per the brief facts of the case, the petitioner was appointed as Lower Division Clerk (LDC) in the Cochin Port Trust (first respondent) in 1996 and was later promoted as Upper Division Clerk/Shed Clerk and thereafter as Operator cum Input/ Output Assistant (OCIOA). His appointment as OCIOA was in 1999 and he was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer. The OCIOA (fifth respondent) who had lesser marks than the petitioner was included as rank No.12 in the list. Since as per Recruitment Rules 2016, the post of Senior OCIOA is to be filled up by promotion from the post of OCIOA with two years regular service or from Accountant with three years regular service, the petitioner contended that the fifth respondent who was his immediate senior in the seniority list of OCIOA was punished for unauthorized absence from May 01, 2015 to May 18, 2015. Therefore, highlighting that said period of 18 days of absence was treated as nonduty, and the fifth respondent became junior to the petitioner, it was claimed that the petitioner ought to have been promoted as Senior OCIOA. However, rejecting his claim, the fifth respondent was promoted as Senior OCIOA.

After considering the submission, the Bench found that fifth respondent was unauthorizedly absent and penalty of censure was also imposed on him.

Further, the Bench noted that the absence of fifth respondent for that period was found to be unauthorized and treated as “non-duty for all purposes other than pension”.

“The specific case of the petitioner is that, while considering the inter-se seniority between the petitioner and the 5th respondent, the specific contention of the petitioner that the period of unauthorized absence of the 5th respondent is liable to be ignored for reckoning seniority had not been considered by the respondents”, added the Bench.

Therefore, accepting the contention of the petitioner that the period of unauthorized absence of fifth respondent cannot be treated as duty for reckoning seniority, the High Court directed the respondents to consider the claim of the petitioner for promotion to the post of Senior OCIOA in preference to the fifth respondent, treating the period of his service from May 01, 2015 to May 18, 2015 as non-duty for the purpose of reckoning seniority.

Cause Title: Viju P. Varghese v. Cochin Port Trust and Ors. [Neutral Citation: 2023/KER/64359]

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