Allahabad High Court
Jayant Pandey vs Union Of India And 3 Others on 27 May, 2024
Author: Chief Justice
Bench: Chief Justice
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:97598-DB
Chief Justice's Court
Case :- WRIT - A No. - 8460 of 2024
Petitioner :- Jayant Pandey
Respondent :- Union Of India And 3 Others
Counsel for Petitioner :- Rahul Srivastava
Counsel for Respondent :- A.S.G.I.
Hon'ble Arun Bhansali,Chief Justice
Hon'ble Vikas Budhwar,J.
1. Impugned in the present proceedings is the order dated 12.07.2023 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad (in short 'Tribunal'), whereby the Original Application No. 798 of 2013 preferred by the writ petitioner, questioning the order dated 20.05.2023 of the Joint General Manager, Small Arms Factory, Kalpi Road, Kanpur Nagar (Factory) was dismissed.
2. The case of the writ petitioner before the Tribunal was that he was appointed as a Mechanist at Small Arms Factory, Kalpi Road, Kanpur Nagar on 01.05.2002 and was allotted Ticket No. 30/QC-1(005452). According to the writ petitioner, though he remained present in the Factory, on working days, however, his salary for the month of April, 2012 was withheld. The writ petitioner being aggrieved against the same preferred representation dated 09.05.2012 before the Senior General Manager, Small Arms Factory. The Senior General Manager, informed the writ petitioner that since he did not punch the cards therefore, he was treated to be absent from the duty. The writ petitioner claims to have preferred Original Application No. 267 of 2013 before the Tribunal which came to be disposed of on 08.03.2013 requiring the respondents herein to decide the representation of the writ petitioner by passing a reasoned and speaking order within a period of two months. Thereafter, on 20.05.2023, the Joint General Manager (A) on behalf of General Manager, Small Arms Factory, Kalpi Road, Kanpur Nagar proceeded to decide the representation of the writ petitioner while holding that since the writ petitioner did not punch his smart card as per the Electronic Attendance Record System (in short 'EARS') so absence was marked and for the said period, the salary was not liable to be paid to him.
3. Challenging the order dated 20.05.2023 of the General Manager, Small Arms Factory, Kalpi Road, Kanpur Nagar, the writ petitioner preferred Original Application No. 798 of 2013 before the Tribunal (J.N. Pandey Vs. Union of India & two Others) which on contest came to be dismissed on 12.07.2023.
4. Questioning the said order, the writ petitioner is filed the present writ petition.
5. Sri Rahul Srivastava, learned counsel for the petitioner has sought to argue that the order of the Tribunal as well as of the General Manager cannot be sustained for a single moment particularly in view of the fact that in the Attendance Register maintained by the respondents, the writ petitioner has been shown to be present in the office thus, by no stretch of imagination, the Attendance Register could have been ignored while holding that the writ petitioner was absent. It was submitted that in the year 2012, the Ministry of Defence had introduced the card punching system for security reasons but the said system was being implemented in nascent and testing phase and it was not mandatory for the employees to punch cards as on various occasions the punching machine was not functional. It is further submitted that pursuant to the application preferred under Right to Information Act, 2005 a communication was made to the writ petitioner informing him that there exists no SRO (statutory rules and orders) in respect of punching.
6. Additionally, it has been submitted that by virtue of marking the writ petitioner absent on the premise that the writ petitioner had not punched the biomatric card now the respondents have treated the said period as break in service and dies non which is punitive in nature thus, in view of the provisions contained under the CCA (CCS) Rules, 1965, a regular departmental inquiry ought to have been conducted. Reliance has been placed upon the judgment in the case of Vijay Pal & Others Vs. Union of India (Writ-A No. 21096 of 2018) decided on 16.05.2023 so as to contend that regular departmental inquiry is must in the cases where the employer treats period to be break in service.
7. Lastly, it has been submitted that the writ petitioner had been discriminated as in the case of Satya Prakash Sharma and Mukesh Kumar Srivastava who did not punch their cards were paid salary whereas in the case of writ petitioner, the said period was treated to be break in service/absent. Thus, it is prayed that the order of the Tribunal as well as of the General Manager, Small Arms Factory, Kalpi Road, Kanpur Nagar be set aside.
8. Countering the said submission, Sri Purnendu Kumar Singh who appears for the respondents has submitted that the order of the Tribunal needs no interference in the present proceedings inasmuch as on 11.03.2011, a policy decision has been taken by the Government of India, Ministry of Defence, Ordinance Factory Board Kolkata whereby punching of cards during entry and exit was made mandatory. Further the Electronic Attendance Record System (EARS) has also been implemented in the Small Arms Factory, Kalpi Road, Kanpur Nagar being a part of the modernization and computerization so as to check the entry and exit of the employees. It is also being argued that since the writ petitioner was not complying with the said requirement so he was on various occasions warned verbally and in writing also.
9. Learned counsel for the respondents have relied upon the circulars dated 01.04.2011, 10.08.2011 and 27.03.2012 so as to contend that the employees posted in the Small Arms Factory were resorting to the procedure of punching their cards but the writ petitioner deliberately for the reasons other than bona fide did not punch the cards, resulting to the fact that for the period when the writ petitioner did not punch the card, he was treated to be absent.
10. Lastly, it has been argued that it is not a case wherein by virtue of the punitive measure, the salary of the writ petitioner has been withheld, rather to the contrary the writ petitioner had not been paid salary for the period when he did not punch the card marking him absent.
11. We have heard the learned counsel for the parties and perused the record carefully.
12. It is also not in dispute that circulars have been issued from time to time requiring the employees to punch the cards for entry and exit. The allegation of the writ petitioner is that punching of card for egress and engress of the employees was not mandatory but an alternative of the conventional system of marking presence in the Attendance Register. To test the said submission, it would be appropriate to refer to the circulars, the first in the league, the instructions dated 11.03.2011 of the Government of India, Ministry of Defence which provided for punching of cards during entry and exit requiring the employees of Group-A, B, C & D in all the units/formations including headquarters of the Ordinance Factory to punch their cards using Electronic Systems while entering and leaving the units and the said scheme was directed to be implemented with effect from 01.04.2011. Thereafter, on 01.04.2011, a letter is stated to have been issued by the respondents whereby it was required that, in case, the punching cards of any of the employee was not in working condition then they were advised to get it repaired. On 10.11.2011, another instruction was issued requiring the employees to resort to punching regularly. In the similar manner, on 27.03.2012, another instruction came to be issued. From the records, it is evident that since the writ petitioner was not punching his cards so a warning letter was issued to him on 21.12.2011. The above noted position beyond shadow of doubt depicts that firstly, the writ petitioner was having knowledge about punching of the cards for entry and exit and secondly, the writ petitioner for the reasons best known to him did not punch the cards.
13. Pertinently, the respondents in its speaking order dated 28.05.2013 recapitulated a chart showing the actual working days, duty days and the days when the writ petitioner was marked absent. The same is quoted in extenso.-
Month
Actual Working days in month
Duty days
Unregularised days
Total amount paid
April 12
May 12
31935
June 12
27158
July 12
August 12
September 12
23610
October 12
31609
November 12
14307
December 12
22152
14. A perusal of the chart shows that the writ petitioner was shown to be present on certain days and absent on other days probably for the reasons that he had been punching the card for certain days wherein he was marked to be on duty and the days when he did not punch the card he was shown to be absent. An inference can be safely drawn that the writ petitioner was in possession of the card, however, as per his convenience, he used to punch the cards for the obvious reasons.
15. Notably, neither before the Tribunal nor before us any pleading has been set forth by the writ petitioner that he was not issued punching cards despite his request. As regards the contention of the writ petitioner that regular departmental inquiry under the rules was required to be conducted before treating the period as break in service is concerned, the same is misplaced for the simple reason that here in the present case the respondents had not resorted to departmental proceedings for misconduct rather to the contrary, the stand of the respondents is that payment is to be made to the writ petitioner for the period when he was on duty.
16. In the opinion of the Court, since the respondents have not taken recourse for imposition of punishment thus, regular departmental proceedings was not required at all. The argument raised by the learned counsel for the writ petitioner that there was two alternative modes available to the writ petitioner for marking his presence either punching the card or signing the attendance register, the same is of no avail particularly when as per the circulars and the instructions issued by the respondents, the conventional method of marking attendance in the attendance register was given a go-by and stood replaced by punching of cards. The judgment in the case of Vijay Pal (supra) is distinguishable in the facts of the present case particularly when the said judgment pertains to selection as whereas the controversy herein is entirely different.
17. Apart from the same, it is the domain of the employer to devise the method for monitoring the movement of their employees to which neither the writ petitioner can dictate terms nor this Court would interfere in such policy matters. Pertinently, the speaking order dated 20.05.2023 of the General Manager, Small Arms Factory, Kalpi Road, Kanpur Nagar also records a finding that there is no record available regarding the presence of the writ petitioner on duty in the alternate system on the dates when the writ petitioner was marked absent. Though, a feeble attempt had been made by the learned counsel for the writ petitioner that there happens to be attendance register available on record but the same would not suffice once it was made mandatory for all the employees to punch the cards.
18. Viewing the case from all the angles, we do not find any perversity in the order of the Tribunal warranting interference in the present proceedings. Resultantly, the writ petition being devoid of merit is liable to be dismissed and is dismissed.
Order Date :- 27.5.2024
Rajesh
(Vikas Budhwar, J) (Arun Bhansali, CJ)
