CAT relief to PG Ayurveda medico denied salary

This observation came from the Tribunal bench comprising of Member (A) Anand Mathur, and Member (J) Rakesh Sagar Jain while it set aside an order passed against a doctor who had been denied payment of salary for a specific period of time upon rejoining service after remaining absent for 1 year 8 months.

Even though the bench slammed the doctor for going on leave only after a few days of service, it also opined that she should be paid salary for the work she had been doing after rejoining service.

The case concerned the petitioner doctor, a Medical Officer (Ayurvedic) in the Health and Medical Education Department, who had taken leave from service from 07.02.2017 to 03.12.2018 for undergoing MD course from Post Graduate College of Ayurveda Paprola (Himachal Pradesh).

She had approached the Tribunal being aggrieved of Govt. Order No. 559-JK (HME) of 2020 dated 24.07.2020 which had treated the absence period as 'Dies Non' instead of treating it as study leave.

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Further, the counsel for the doctor informed the bench that in the aforesaid order, the Government had denied her the arrears of salary with effect from 01.10.2018 up to 24.07.2020 even though the petitioner had joined/resumed her duties as Medical Officer (Ayurveda) on 01.10.2018 itself, after completing her MD course.

Approaching the Tribunal with her grievances, the doctor had sought the following reliefs- quashing of the concerned Government order and accept the rejoining of the doctor from 01.10.2018, direct the Government to treat the period w.e.f., 07.02.2017 to 01.10.2018 as study leave and to further direct the respondents to release the arrears of the salary to the doctor w.e.f., 01.10.2018 till 24.07.2020 etc.

The counsel for the doctor argued that in the concerned order dated 24.07.2020, the Government had incorrectly treated the period from 07.02.2017 to 03.12.2018 as dies non.

On the other hand, the Government submitted that the doctor was posted at ISM Dispensary, Jakhade, Udhampur against available vacancy, in terms of Government Order No. 48-HME of 2017 dated 30.01.2017. After joining the post, the doctor left the same on 07.02.2017 by submitting her departure report to ADMO Office, Udhampur to pursue higher studies.

After completion of the MD (Ayurvedic), the doctor submitted her joining report to the Administrative Department on 01.10.2018 which was later forwarded to the Director, Indian Systems of Medicine for comments. She had also submitted her joining report to the Director, Indian Systems of Medicines, J&K Jammu on 04.12.2018.

The Directorate vide letter dated 28.03.2019 sought instructions of the Administrative Department for acceptance of the joining report as well as settlement of the unauthorized absence of the applicant from 07.02.2017 to 04.12.2018. The proposal passed through various stages of examination and eventually, it was decided by the authorities to place the matter before a designated Committee.

Accordingly, the proposal was forwarded to the Director Finance, Health and Medical Education Department (Chairman of the Committee) for further orders. The Committee, sought details of the officer on the prescribed format for arriving at a conclusion. On the basis of the decision taken by the Committee, the Government had passed the Order No. 559-JK (HME) of 2020 dated 24.07.2020. Consequently, the joining report of the doctor was accepted w.e.f., 04.02.2018 and monetarily with immediate effect viz. 24.07.2020, the period of undergoing higher studies w.e.f., 07.02.2017 to 03.12.2018 was treated as 'Dies Non'.

Furthermore, Director Indian Systems of Medicine, J&K, Jammu was advised to fix responsibility who were dealing hand in the Directorate and did not initiate any action against the doctor, it was submitted by the Government. In fact, the doctor was also warned not to leave her place of posting unauthorizedly in future for any occasion. Referring to all these facts, the Government opined that the plea is devoid of any merit.

After listening to arguments of both the sides and perusing the material on record, the Tribunal bench noted that the doctor as posted at Udhampur and joined there on 03.02.2017. However, after working for just a few days, i.e. on 07.02.2017, she submitted her departure report in order to complete her PG course which she was already pursuing and also requested for sanctioning of study leave in her favour till October 2018.

At this outset, the bench noted, "It is obvious from this that the applicant worked for merely a few days i.e., from 03.02.2017 to 07.02.2017 and left on her own requesting for sanction of study leave. It is clear from this that she was already pursuing a PG course and during that period she concurrently joined Government Service for five days and went back to rejoin the PG course. this action is highly questionable."

"A Government Servant is supposed to be aware of the basic rules of the service and the applicant was supposed to know that study leave cannot be granted to a person who has put in barely a few days of service. Therefore, leaving her duty without any permission was certainly inappropriate on her part," observed the bench.

Referring to the doctor's claim that she had reported back for duty on 01.10.2018, after 1 year and 8 months she had reported back to the Financial Commissioner, the Tribunal noted, "Here again, as she had been originally posted at Assistant District Medical Hospital ISM, Udhampur why did she not report back at her original place of posting. It was incorrect on her part to report in the office of Respondent No. 1."

"She further claims that Respondent No. 1 directed her to report in the office of Respondent No. 2 after two months in December 2018 where she submitted her joining report on 04.12.2018. Respondent No. 2 vide letter dated 11.12.2018 directed her to report to Government Ayurvedic Hospital, Jammu till further orders. She joined Government Ayurvedic Hospital on 12.12.2018. Therefore, she claims that she has been continuously working at Government Ayurvedic Hospital Jammu from 12.12.2018 onwards," noted the bench.

At this outset, referring to the order dated 24.07.2020, the bench clarified, "it is clear that the respondents have decided to accept the joining of the applicant notionally w.e.f., 04.12.2018 and monetarily with immediate effect (24.07.2020) and treat the period of undergoing higher studies w.e.f, 07.12.2017 to 03.12.2018 as dies non."

Relying on the details mentioned, the bench opined, "there is a need to decide the period from 01.10.2018, when the applicant reported to Respondent No. 1 to 04.12.2018 as also the justification for denying monetary benefit to her from 04.12.2018 to 24.07.2020 (date of issuance of impugned order)."

Although the bench slammed the doctor for joining at another place instead of her primary posting, it also opined that the Government shouldn't deny her the payment for the work she had been doing after rejoining service.

"Strictly speaking, the applicant should have reported back to Udhampur where she has been originally posted and had departed on her own without any permission from the Government, however, she chose to report to Respondent No. 1 for reasons best known to her. In any case, in as much as she did report for duty on 01.10.2018, it was for the respondents to immediately give her a posting so that she could start working. Therefore, the period from 01.10.2018 to 04.12.2018 has to be treated as 'waiting for orders' as this delay cannot be attributed to the applicant. Further, in as much as the applicant had started working from 12.12.2018, there is no reason for denying payment after this date in as much as she had actually been working since then," noted the bench.

Thus, quashing and setting aside the Government order dated 24.07.2020, the bench issued the following orders-

(i) From 01.10.2018 to 04.12.2018 as 'Waiting for Orders', the applicant should be paid salary as this delay cannot be attributed to her.

(ii) The period from 04.12.2018 to 24.07.2020 (date of issuance of impugned order) is to be treated as on duty provided she had actually performed duty during this period. This period needs to be checked with her attendance. 

iii) As far as the period from 07.02.2017 to 01.10.2018 is concerned, it obviously cannot be treated as study leave as she had put in only few days of service and was not eligible for grant of study leave. However, use of the term 'dies non' carries a negative connotation and should normally be used only after affording an opportunity to the employee to give her explanation. Therefore, this period should be decided only after affording an opportunity for the applicant to explain her absence. At the same time, it is also a fact that the applicant has exhibited indiscipline as well as breach of rules and regulations by joining a Government Service simultaneously during the period of her pursuing a PG course and leaving her duty on 07.02.2017 without any prior approval from the Government. The respondents may take a suitable view on these issues.

To read the order, click on the link below.