Bombay High Court
Capt. H. K. Mishra vs Union Of India Through The ... on 6 April, 2023
Bench: G.S. Patel, Dr. Neela Gokhale
2023:BHC-AS:10352-DB Capt HK Mishra v Union of India & Ors
66.aswp-4130-2018-J.doc
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4130 OF 2018
Capt HK Mishra,
A-11, Type-5, Ekta Vihar, Uran Road, Navi
Mumbai 400 614.
Mob.: 9869112528
e-mail id: [email protected] ...Petitioner
~ versus ~
1. Union of India,
Through The Secretary, Ministry of
Shipping, Govt of India, Through
Ministry of Law and Justice/Govt
Standing Counsel Govt of India,
Mumbai.
2. The Director General of
Shipping,
Govt of India, Directorate General of
Shipping 9th Floor, Beta Building I-
Think Techno Campus, Kanjurmarg
(E), Mumbai 400 042, Through
Ministry of Law and Justice/Govt
Standing Counsel.
3. Indian Maritime University,
Through The Registrar Indian
Maritime University, East Coast Road,
Sammencherry, Chennai 600 119,
Through Director, IMU Mumbai Port
Campus. ...Respondents
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A PPEARANCES
for the petitioner Mr HK Mishra, Petitioner in person.
for respondent no.1 Mr Rui Rodrigues, with NR
Prajapati.
for respondent No.3 Mr Mihir Desai, Senior Advocate,
i/b Devyani Kulkarni.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
RESERVED ON : 21st March 2023
PRONOUNCED ON : 6th April 2023
ORAL JUDGMENT (Per Neela Gokhale J):-
1. Rule. The contesting 3rd Respondent has filed an affidavit in
reply. By consent, Rule made returnable forthwith.
2. The matter involves an administrative conflict between the
parties arising out of refusal of the Petitioner to mark his attendance
in Biometric Attendance System ("BAS") portal as mandated by
Office Memorandum ("OM") issued by the Government of India
and the relevant Rules and Ordinances of the Respondents. This
resulted in the Respondents treating him as 'absent' from duty and
off-setting the absence period against his accumulated leave.
Aggrieved by the penal action by the Respondents, the Petitioner
seeks recovery of his deducted salary with interest, in addition to
restoring the accumulated leave to his credit. He has further prayed
for a direction to the 3rd Respondent University to compensate him
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with equal amount of money towards notional advance of LTC.
There are also prayers in damages, etc.
3. Pertinently the Petitioner has neither assailed the Office
Memorandum issued by the Government of India nor the
Rules/Instructions of the 3rd Respondent University mandating the
marking of attendance by its employees in the BAS machine. It is
further relevant to note that the Petitioner abstained from the
discipline of BAS for a limited period of three months and 16 days
and only in the year 2017. The Petitioner resumed marking his
attendance in the BAS from 14th December 2017.
4. The 1st Respondent is the Union of India through the
Secretary Ministry of Shipping and Ministry of Law and Justice.
The 2nd Respondent is the Director-General of Shipping of the
Union of India and 3rd Respondent is the Indian Maritime
University.
5. FACTUAL MATRIX
(a) The Petitioner is an employee of the Government of
India, appointed as a Nautical Officer on 26th September 2001 in
TS Chanakya under the Director-General of Shipping. His formal
appointment was issued on 11th April 2002. He subsequently joined
the LBS College of Advanced Maritime Studies and Research on
6th December 2006. Four Maritime Institutes were merged with
the TS Chanakya Ship and brought under the Indian Maritime
University ("IMU") established on 14th November 2008 by the
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Indian Maritime University Act. The University is regulated by its
own Statutes and Ordinances.
(b) Pursuant to the directions issued by the Government of
India on 23rd December 2014 to secretaries of all government
organisations directing all employees to mark their attendance in
BAS portal on regular basis, the 3rd Respondent University, on
22nd July 2015 issued instructions to its employees regarding
adherence to the BAS in IMU. Ordinance No. 06 of 2017 of the
IMU cautioned disciplinary/legal action against any employee who
failed to abide by the BAS. The Ordinance was to take retrospective
effect from 27th July 2015
(c) The Petitioner complains of harassment at the hands of
the administration and is also aggrieved by exemptions granted to
some Officers of IMU from marking their attendance on BAS which
he alleges to be discriminatory.
(d) In 2016, the Petitioner was issued a transfer order to
Kochi, which he challenged in this Court by filing Writ Petition No.
6351 of 2016. A Division Bench of this Court stayed the transfer.
IMU's Special Leave Petition to the Supreme Court failed. IMU
cancelled the transfer order and the Petitioner continued at
Bombay.
(e) Initially, the Petitioner was marking his attendance in
the BAS. However he abstained from adhering to the BAS from last
three days of August 2017 through September 2017, October 2017,
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November 2017 and until 13th December 2017. Resultantly, the 3rd
Respondent University treated him as absent from service for those
days and further treated his balance leave as exhausted. The
calculation placed on record indicates that the IMU deducted 321
days of earned leave of the Petitioner treating the days on which he
had not marked his attendance in the BAS as absence from service.
(f ) The Petitioner filed Contempt Petition No. 426 of 2017
in Writ Petition No. 6351 of 2016 in this Court. A Division Bench of
this Court, by its order dated 24th February 2018 dismissed the
Contempt Petition holding, prima facie, that if an institution
provides for adherence to BAS and if an employee refuses to do so,
the employer would not be unjustified in taking action for the same.
However, this Court recorded that if the Petitioner contended that
the act was illegal, it would give the Petitioner a fresh cause of
action.
(g) The 3rd Respondent University intimated the
Petitioner about status of leaves to his credit by OMs dated 28th
August 2017, 29th September 2017, 31st October 2017 and 5th
January 2018. The OMs also put the Petitioner to notice of
deductions in his salary in the event of further non-adherence of
BAS. The Petitioner resumed marking his attendance through BAS
from 14th December 2017 and immediately IMU started paying his
salary.
(h) The Petitioner insists that he has attended his office
and regularly discharged his duty on the days on which he has been
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shown absent only on account of non-adherence to BAS. Thus, the
Petitioner aggrieved by the deduction in his salary, and treating his
leave as exhausted has filed the present Writ Petition seeking reliefs
as prayed.
(i) The contesting 3rd Respondent University has filed its
Affidavit in Reply and the Petitioner has also filed an Affidavit in
Rejoinder.
6. SUBMISSIONS OF THE PETITIONER:
(a) The Petitioner appears in person. He contends that the
IMU Act and its Statutes and Ordinances are not applicable to him
since he is a Central Government Officer on deemed deputation to
LBS College of Advanced Maritime Studies and Research. He relies
on Section 49 of the Indian Maritime University Act 2008 ("IMU
Act" which provides the employees of the four Maritime Institutes
merging with the Training Ship Chanakya an option to join IMU as
per its service conditions.
(b) The Petitioner has complained of harassment at work
including instances such as: many officers of the IMU being
exempted from marking their attendance in BAS, the reasons being
kept secret; teachers being treated differently from officers
occupying administrative positions; a freshly appointed Associate
Professor, 14 years his junior, being appointed as Director of the
Mumbai Port Campus and the Petitioner having to report to him;
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BAS being used as a weapon to silence officers raising charges of
organised corruption against IMU.
(c) The Petitioner thus claims that he had no intention to
undermine the discipline at workplace and his refusal to adhere to
BAS was only a protest against the discrimination in IMU which
was arbitrarily exempting select officers from mandatory BAS
adherence.
(d) The Petitioner has challenged the action of IMU in
issuing the four OMs on the grounds that the action is mala fide,
illegal, without authority and in violation of Section 49 of the IMU
Act, the provisions of the Fundamental Rules and the Central Civil
Services (Classification, Control and Appeal) Rules 1972 ("CCS
Rules"). The Petitioner has further objected to the retrospective
effect given to the University Ordinance No. 06 of 2017 to apply
from 2015.
(e) In view of the above contentions, the Petitioner seeks
directions of release of his salary with interest, restoration of
deducted leave and also amounts towards lost anticipated LTC.
7. SUBMISSIONS OF THE 3rd RESPONDENT:
(a) Mr Rodrigues appears for the Respondent No.1 Union
of India. Mr Desai, learned Senior Advocate appearing for the 3rd
Respondent University, contested the claim of the Petitioner that he
is not bound by the IMU Act, Statutes and Ordinances, being on
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deputation from the Central Government. He states that the
Petitioner was transferred to LBS College of Advanced Maritime
Studies and Research and clarifies that the legal effect of merging
various Maritime Institutes in TS Chanakya is that the legal identity
of the Institutes stood extinguished and merged into IMU on 14th
November 2008
(b) Mr Desai contends that every other employee except
the Petitioner was complying with the BAS. He emphasises the
authority of the IMU to deduct from the salary of its employees by
following due procedure and denies the action against the Petitioner
as a form of punishment. The action is justified by the IMU by
pointing to its own Circular No. 15 dated 27th July 2015 and
Ordinance No. 06 of 2017 providing for disciplinary/legal action
against indiscipline of an employee.
(c) Mr Desai draws our attention to the assailed OMs and
canvases that the Petitioner was put to notice of the consequences
of non-adherence to the BAS and was intimated that not marking
his attendance by BAS resulted in him being treated as absent and
also exhaustion of leaves to his credit. It was further contended that
the action and behaviour of the Petitioner in not complying with the
mandated BAS caused indiscipline and disturbance at the 3rd
Respondent University. His action amounted to indiscipline and
insubordination for which the Respondents were well within their
authority to make deductions from his salary. Mr Desai further
argued that the IMU was merely following the orders of the Central
Government that specified disciplinary action against employees
against non-compliance of BAS. He contended that even holding
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against the University, the Petitioner being a government servant
was still subjected to Rules stipulated by the Central Government, if
not the Ordinance and Circular of IMU.
(d) Further rebutting the allegations of the Petitioner
regarding a junior person being appointed as Director in-charge of
the newly created IMU (Mumbai Port Campus) and compelling the
Petitioner to report to him, it was clarified that the said person was
appointed by the IMU HQ Chennai and others similarly placed as
the Petitioner were also reporting to him.
(e) It has been further contended by the 3rd Respondent
University that during surprise checks conducted, it was found that
the Petitioner was not taking classes as per the time-table, for which
an explanation was called from the Petitioner. No reply was
forthcoming. The 3rd Respondent University has stated this to be
an act of negligence and insubordination by the Petitioner, affecting
the discipline and reputation of the Institute. The 3rd Respondent
has thus termed the Petition as not maintainable and sought its
dismissal.
8. ANALYSIS
(a) Having gone through the submissions and documents
placed on record by conflicting parties, the admitted position that
emerges is that the Government of India by its letter dated 23rd
December 2014 had communicated to all its Departments and
Organisations to ensure marking of attendance of its employees in
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BAS Portal on regular basis. The object of introducing the BAS was
to monitor attendance of its employees and ensure discipline as a
large difference was found between the number of registered
employees and the number of employees marking their attendance.
(b) The Letter dated 23rd December 2014 was followed by
an OM dated 28th January 2015 mandating all employees to register
in the BAS and mark their attendance. The OM further authorised
appropriately dealing with cases of late attendance/unauthorised
absence as per existing instructions.
(c) Acting in aid of the Government directions, the IMU
issued instructions for the BAS by its Circular dated 27th July 2015.
Clause 4 of the Circular mandated that all employees other than
those exempted were required to compulsorily mark their arrival
and departure in the BAS machine. Clause 10 stipulated that if the
casual leave of the employee is already exhausted, it will be treated
as earned leave or any other leave to which he is entitled, failing
which as leave without pay.
(d) Ordinance 06 of 2017 of the IMU was promulgated and
was to apply retrospectively from 27th July 2015. Clause 15 of the
Ordinance cautioned that 'disciplinary/legal action shall be initiated
against any employee who doesn't abide by the Biometric Attendance
System (BAS) or is found to be directly or indirectly tampering with the
BAS or with the surveillance system or unauthorisedly tampering with
the attendance particulars.' It was thus not until 2017 that non-
adherence to the BAS invited disciplinary or legal action.
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(e) Undoubtedly, the Petitioner being an employee of the
Government of India was bound by the OM issued by the Central
Government. Even if the claim of the Petitioner is accepted that he
was on 'mere deputation' and has not opted to be subjected to the
IMU service conditions under Section 49 of the IMU Act, a bare
reading of the Ordinance No. 06 of 2017 clarifies that it applies to
him. The Ordinance says 'The Ordinance will apply to all employees of
the Indian Maritime University. "Employee" means any teacher or non-
teaching staff of the University who has been appointed by the University
or who stood transferred to the University by virtue of Section 49 of the
IMU Act 2008 and includes deputationists of the University.' The
Ordinance thus clearly includes deputationists, apart from
employees who have exercised options under Section 49 of the Act.
Hence, we have no hesitation in holding that the
Ordinance/Instructions and Rules of the IMU are binding on the
Petitioner. In any case the Petitioner is bound by the directions and
instructions of the Central Government.
(f ) It is an admitted fact that the Petitioner had initially
marked his attendance by the BAS. It was only as a mark of protest
against alleged discrimination among exempted employees and
others like the Petitioner compelled to be subjected to BAS, that he
refused to mark his attendance by BAS. Consequently, he was
visited with penal action by IMU by treating him as 'absent from
duty' and thereby deducting his salary. Even his balance and
accumulated leave was treated as having been exhausted. Relevant
to note is that the Petitioner was not actually on leave and was in
fact attending office and discharging his duty. It is not even the case
of the 3rd Respondent that he was actually absent from work. He
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was being treated as 'absent' only on record for not marking his
attendance in BAS. There is a stray allegation that on a surprise
inspection, the Petitioner was not in class; however the 3rd
Respondent has not seriously nor substantively disputed his
physical attendance in office. Hence, the action taken by the IMU
by deducting his salary and treating his absence against accumulated
leave was nothing but a penal action/disciplinary action against him.
(g) The conduct of the Petitioner cannot be ratified nor
justified. Having refused to comply with DoPT instructions and
deliberately refusing adherence to institutional discipline, we have
no hesitation in holding that the conduct of the Petitioner is that of
indiscipline and insubordination. The four OMs impugned in the
Petition had given him clear notice of the resultant consequences of
failing to mark his attendance as per Institution discipline.
(h) However, the acts of the Petitioner in displaying
indiscipline and insubordination does not authorise the
Respondents in taking penal action against him without following
due process of law. The OM dated 28th January 2015 of the Central
Government as well as the Ordinance 06 of 2017 issued by the IMU
also authorises the employer to initiate disciplinary action against
the errant employee. However, initiation of disciplinary action
entails a procedure known to service law to be followed prior to
imposition of penal action against the employee.
(i) The factual position is that the Petitioner was not even
given any show cause notice to explain his actions. It was only the
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monthly memos impugned in the Petition that were communicated
to the Petition and then too merely informing him that he has been
treated as absent and his leave was also being treated as exhausted.
The days of purported 'no attendance' were termed as days of 'no
pay', despite the fact that the Petitioner was very much attending
office. Thus, he was not given an opportunity of being heard. No
reply/explanation was sought from him prior to deducting his salary
and leave accumulated to this credit. The doctrine of audi alteram
partem has clearly been violated. Rules of natural justice have not
been followed.
(j) There is a consistent pattern of judicial thought that
civil consequences entail infractions not merely of property or
personal rights, but also of civil liberties, material deprivations, and
non-pecuniary damages. Every order or proceeding which involves
civil consequences or adversely affects a citizen should be in
accordance with the principles of natural justice. No person can be
condemned unheard. Thus, the action taken by the 3rd Respondent
University cannot be sustained as it has been taken without
following the due process of law.
(k) As noted at the outset, the Petitioner has not
challenged the mandate of BAS itself, nor any OM of the Central
Government or the IMU. The only relief sought by the Petitioner is
recovery of salary deducted by the 3rd Respondent University and
the restoration of leave at his credit. The Petitioner has made
several allegations of harassment against the IMU administration. It
is settled law that writ petition under 226 of the Constitution of
India cannot be entertained for recovery of money. The remedy for
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that lies elsewhere. Similarly, the extraordinary writ jurisdiction of
this Court cannot be invoked for relief against harassment by the
IMU administration, which entails evidence to be adduced and facts
to be proved by parties.
(l) We have already held that due process of law has not
been followed by the 3rd Respondent prior to taking penal action
against the Petitioner. Leave to the credit of the Petitioner has been
treated as exhausted on account of being treated as absent from
service. The details of deducted leave placed on record indicate that
321 days of Earned Leave were deducted by the 3rd Respondent.
Hence, we deem it fair in the interests of justice that the leave
accruing to the credit of the Petitioner and which has been treated
as exhausted on account of him being treated as absent from work
must be restored to his credit.
9. For the reasons stated herein above, prayer clause (a) seeking
direction to the 3rd Respondent University to pay forthwith all
balance pay/salary along with interest stands rejected. Prayer clause
(c) seeking compensation for notional loss of his LTC is also
rejected. However, we direct the 3rd Respondent University to
restore the leave accruing to the credit of the Petitioner which has
been treated as exhausted on account of him being treated as absent
from work forthwith and to that limited extent prayer clause (a)
stands partly allowed.
10. The prayer seeking recovery of money cannot be granted in a
Writ Petition under Article 226 of the Constitution of India, 1950
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and the remedy lies elsewhere. The Petitioner is at liberty to pursue
appropriate remedies in a Court of competent jurisdiction. If the
Petitioner chooses so to do, all contentions shall be left open. The
time spent before this Court in the present proceedings shall stand
excluded for the purpose of calculating the period of limitation.
11. The Writ Petition is therefore partly allowed. Rule is partly
made absolute in these terms. Interim orders, if any stand vacated.
12. No order as to costs.
(Neela Gokhale, J) (G. S. Patel, J)
6th April 2023
