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September 25, 2012 at 1:30 am #74424
Anonymous
Inactive@Som,
I think it may applicable in this situation, let others members may ask for their valuable opine.September 25, 2012 at 9:08 pm #74461InactiveFriends,
I fully agreee with Mr. A. Ray that Leave Not Due (LND) can’t be granted to the temporary female employee on the ground that she did not complete one year of regular service on the date of initiation of second spell of leave. Note-1 as suggested by Mr.10Moy can’t be attracted because of her disentitlement for LND.
Though CCL is admissible to her at this stage yet EOL may be granted for a max. of 3 months if she applies for it(!). No Medical Certificate to the effect of her illness is required. In that case, the balance amount may be compensated by CCL. Otherwise, I think, it will be easy if she is convinced to apply for CCL to make up the unaccounted 219 days to regularise her service, as suggested by Mr. Ray.September 26, 2012 at 12:59 am #74464InactiveDr Majumder,
Good morning, would you please explain how that employee not entitled to get LND?September 27, 2012 at 3:48 am #74509InactiveAt my 46, I am never claim that I am a young man; আমি আসলে আমি নিজেকে ভারতবর্ষের একজন স্বাধীন নাগরিক বলে মনে করি। আর একজন স্বাধীনচেতা নাগরিকের যা কর্তব্য তা পালন করার যথাসাধ্য চেষ্টা করি।
কিছুদিন ধরে দেখছি, এই ফোরামের কোন কোন সদস্য রাজ্য ও কেন্দ্রীয় আদেশনামা গুলি এক করে ফেলছেন। ভারতবর্ষ যুক্তরাষ্ট্র কাঠামোর উপর নির্ভরশীল। রাজ্যের ও কেন্দ্রের এক্তিয়ার বেশিরভাগ ক্ষেত্রেই ভিন্ন। এখানে কেন্দ্রীয় ক্ষেত্র তালিকা, রাজ্য ক্ষেত্র তালিকা ও যুগ্ম ক্ষেত্র তালিকা আছে। তাই কেন্দ্রীয় আদেশনামা সর্ব ক্ষেত্রেই যে রাজ্যের ক্ষেত্রে এক হবে তার কোন মানে নেই।
I have checked the eligibility criteria and found through the Rule 174 of WBSR Part – I, 1987 reprint edition & Published by Superintendent, Government Printing, West Bengal Government Press, Alipore, West Bengal states as follows: –
174 (1) Save in the case of leave preparatory to retirement “leave not due” may be granted to a Government employee in permanent or temporary employ subject to the following conditions : –
a) The authority competent to grant leave is satisfied that there is reasonable prospect of the Government employee returning to duty on its expiry,
b) Leave not due shall be limited to the half-pay leave he is likely to earn thereafter,
c) Leave not due during the entire period of service shall be limited to a maximum of 360 days, out of which not more than 90 days at a time and 180 days in all may be otherwise than on medical certificate,
d) Leave not due shall be debited against the half-pay leave the Government employee may earn subsequently.
I think, now it is clear to all of my friendsSeptember 27, 2012 at 12:26 pm #74529InactiveDear friends,
Let us see what does the LND rule stipulate –
“174 (1) Save in the case of leave preparatory to retirement “leave not due” may be granted to a Government employee in permanent or temporary employ subject to the following conditions : –
(a)The authority competent to grant leave is satisfied that there is reasonable prospect of the Government employee returning to duty on its expiry,
(b)Leave not due shall be limited to the half-pay leave he is likely to earn thereafter,
(c)Leave not due during the entire period of service shall be limited to a maximum of 360 days, out of which not more than 90 days at a time and 180 days in all may be otherwise than on medical certificate,
(d)Leave not due shall be debited against the half-pay leave the Government employee may earn subsequently.
(2) Leave not due can also be granted to such of the temporary Government employees as are suffering from Tuberculosis, Leprosy, Cancer or mental disease for a period not exceeding 360 days during the entire service, subject to fulfillment of conditions in clauses (a), (b) and (d) of sub-rule (1) and subject to the following conditions namely:-
(i) that the Government employee has put in a minimum one year’s service
(ii) …………………….
(iii) that the request for grant of such leave is supported by a medical certificate as envisaged in rule 175.
(3)………………
(4)……………..
…………………..
…………………….
Note 1.—Leave not due is intended to be regarded as an advance of leave and its grant should therefore be -limited to the amount that both can be and will be earned by subsequent duty; further, it is meant to be granted only in exceptional cases of illness and finally when the exceptional step of granting such leave is taken, it shall be irrevocable, except at the request of the officer, who should not be penalized if reasonable anticipations fail to materialize.
Leave not due should in no case be granted unless the sanctioning authority is satisfied that so far as can be reasonably foreseen, the officer shall return to duty and earn it; but the leave when granted should in all cases, subject to the officer’s wishes and to subrules (3) and (4) be allowed to stand including cases in which the officer fails to earn it by subsequent duty.”
Let me understand the merit of the case and applications of LND Rule:-
Rule 174
(1) “Save in the case …….following conditions :”
Yes, I agree with the operation of the rule in cases of permanent & temporary employees.
“ (a) The authority competent ………..on its expiry,”
Yes, I agree that the Authority has now no hesitation to comply with this provision as she has returned and joined office by showing her sufficient “prospect of returning to the duty”.
“(b) Leave not due shall be limited to the half-pay leave he is likely to earn thereafter” —-Yes, I agree on the presumption that she should continue in this service in future. This much flexibility in the thinking can be allowed in favour of an employee. No harm in it!
“(c)Leave not due during the entire period of service shall be limited to a maximum of 360 days, out of which not more than 90 days at a time and 180 days in all may be otherwise than on medical certificate,”
Here is the problem! She is left with 219 days of absence in the 2nd spell as per calculation of Mr. A. Ray, which is required to be adjusted by grant of leaves to regularize her service. Provided that she is reluctant to take CCL.
LND for a continuous spell of 90 days can be granted without Medical Certificate on the first occasion.
Now, how to make up the remaining period of 129 days (219 – 90)?
Total admissibility for LND with out Medical Certificate (M.C.) is at the maximum of 180 days including the continuous spell of 90 days. So, the remaining 90 days (180 – 90) have to be granted in different spells. And, if so, every two of such spells should be punctuated by other kinds of leaves !!
It follows that-
Total continuous absent period 219 days = 90 days (continuous LND without M.C.) + Kind of leave ??? + 89 days (LND without M.C.) + Kind of leave ??? + 1 day (LND without M.C.). + Kind of leave???
“(d)Leave not due shall be debited against the half-pay leave the Government employee may earn subsequently.”
Question does not arise unless the problem with application of Sub-rule 1 (c ), as illustrated above, is solved.
Let us explore sub-rule (2) and find out the possibilities, if any:-
“(2) Leave not due can also be granted to such of the temporary Government employees as are suffering from Tuberculosis, Leprosy, Cancer or mental disease for a period not exceeding 360 days during the entire service, subject to fulfillment of conditions in clauses (a), (b) and (d) of sub-rule (1) and subject to the following conditions namely:-
(iv) that the Government employee has put in a minimum one year’s service
(v) …………………….
(vi) that the request for grant of such leave is supported by a medical certificate as envisaged in rule 175.
(3)………………
(4)……………..
…………………..
…………………….”
The first para leaves scope for grant of LND up to 360 days to a temporary employee ONLY on the ground of such diseases which MUST BE JUSTIFIED ON PRODUCTION OF MEDICAL CERTIFICATE of self (and not for children).
Then, in so far as the matter relates to the clarifications in Note1 under LND rule 174 , it follows that:-
“Note 1.—Leave not due is intended to be regarded as an advance of leave and its grant should therefore be -limited to the amount that both can be and will be earned by subsequent duty;”
the provision is related to the operation of sub-rule (1) of LND. The problem with application of clause (c) of sub-rule (1), as shown above, shall be solved first.
Note 1 continues “………further, it is meant to be granted only in exceptional cases of illness”:
the provision is related to the sub-rule (2) of LND. Question does not arise in context of the present case where the female employee was NOT suffering from exceptional illness.
Sir,
Please follow the Schedule II [See rule (2) (c)] FORM OF LEAVE ACCOUNT of WBSR – Part – I, see the heading of column 30-32 which is written “Otherwise than on Medical’ Certificate limited to 180 days.Possibly it’s not the actual provision of the rule; perhaps it’s not logical to go straightway to the phrase “otherwise than on medical certificate limited to 180 days” without considering the preceding phrases “90 days at a time and 180 days in all” in the clause (c) of sub-rule (1)! It’s not at all clear to me! Friends pls solve the problem, especially the problem with the valid application of clause (c) of sub-rule (1) of LND rule 174.
কিছুদিন ধরে দেখছি, এই ফোরামের কোন কোন সদস্য রাজ্য ও কেন্দ্রীয় আদেশনামা গুলি এক করে ফেলছেন। ভারতবর্ষ যুক্তরাষ্ট্র কাঠামোর উপর নির্ভরশীল। রাজ্যের ও কেন্দ্রের এক্তিয়ার বেশিরভাগ ক্ষেত্রেই ভিন্ন। এখানে কেন্দ্রীয় ক্ষেত্র তালিকা, রাজ্য ক্ষেত্র তালিকা ও যুগ্ম ক্ষেত্র তালিকা আছে। তাই কেন্দ্রীয় আদেশনামা সর্ব ক্ষেত্রেই যে রাজ্যের ক্ষেত্রে এক হবে তার কোন মানে নেই।
I have gone through LND rule no. 174 of WBSR for WB Govt. employees, which conform to the LND rule no. 31 of CCS (Leave) Rules,1972 for Central Govt. employees and, practically no difference. If interested, get it from the following link (Clarifications of the Rule 31 similar to “Note 1” of 174 of WBSR is also there in the original Rule Book of CCS(Leave) Rules)):
http://persmin.nic.in/DOPT/EmployeesCorner/Acts_Rules/ccs_leave_rules.pdf
Pls also see Appendix-8 in WBSR Part-I for genesis of leave rules of State Govt. employees!
As far as I know, according to the provisions of Article 246 of the Constitution of India in regard to the Centre and State relation the legislative powers have been categorized in three lists – Union List with 97 subjects, State List with 66 subjects and Concurrent List with 47 subjects.
With regards.September 27, 2012 at 6:47 pm #74538InactiveNo point of controversy. Setting aside all other eligibility criteria related question, LND can’t be granted in the present case because of a very simple reason that has been explained in Note 1 below rule 174 which states –
“Leave not due is intended to be regarded as an advance of leave and its grant should therefore be -limited to the amount that both can be and will be earned by subsequent duty; further, it is meant to be granted only in exceptional cases of illness and finally when the exceptional step of granting such leave is taken, it shall be irrevocable, except at the request of the officer, who should not be penalized if reasonable anticipations fail to materialize.”
And I repeat he concerned employee is not ill. Now, Here “illness” in Note 1 could not be read as “illness of family members or neighbors”. The essence of the rule is clearly reflected in itself.
@ Mr. Som,
Sorry, I could not find any alternative way. I fear she has to sacrifice Ch.C.L. for the specified period. We may pray that her child gets well soon and she need the rest of her Ch.C.L. for other issues towards bringing her up. As regard your question whether EOL here would cause break in service – please check my post in the following link: https://wbxpress.com/topic/no-of-casual-leaves-after-enjoying-maternity-leave/
And as regards question “What worse may be if there is a break of service in the beginning?” – It could result a lot like – Loss of Increment, delay in promotion caused by loss of Seniority, delay in availing facilities that are available after confirmation, affecting pension and the most vital factor here – impact on leave account. You think if she is not in service for a period, how she can earn leaves for that period. Everything will be messed up. So, if she is that much reluctant to use Ch.C.L. and prefers accepting the losses as mentioned, I would like to suggest her to consult with an Expert in this regard, for any better alternative.
Members, that’s all I could suggest. Please suggest if there is any alternative way as I feel that the employee concerned desperately needs it.September 28, 2012 at 11:58 am #74546Inactive@A.Ray: Dear friend, I am speechless to say you thanks. You considered the matter so sympathitiablly and Judged it so nicely. I duly conveyed your wishes to the lady. I had a talk with her this morning and what she told is hard to digest. Her child has been suffering from blood disorder(Probably Thalassemia) and therefore she has given up all the hopes to continue her service. She has decided to file resignation letter next Monday. Actually she has many more family problems which compled her to take the decision. Now I have to know whether the so called 1 months notice before resignation is required in this case or not.
September 28, 2012 at 2:33 pm #74548InactiveDear Mr. Som,
Sorry to hear that. It’s always hard to hear an innocent child’s illness. May God please bless the child.
As regards resignation, as we have discussed earlier, it has been detailed in rule 34A of W.B.S.R. Part-I. Here are relevant extracts from the rules –
34A. (1) No Government employee shall, unless the Government otherwise directs, be permitted to resign if he fails to serve on his appointing authority due notice at least for-
(a) in the case of a Government employee holding no lien or suspended lien on a permanent post under the Government,…………..one month ; or
(b) in the case of a Government employee holding lien or suspended lien on a permanent post under the Government, three months.
Explanation.-In (his rule and in rule 34B “Government employee” means a person appointed to a service or post in connection with the affairs of the State and remunerated otherwise than on a daily, weekly or fortnightly basis.
(2) A Government employee who tenders resignation and quits without giving the notice as provided in sab-rule (1) ‘shall, at the discretion of the appointing authority, be liable to forfeiture of his salary for the period by which the notice falls short of the requirements of clause (a) or clause (b), as the case may be, of that sub-rule in addition to such disciplinary action as may be taken against him for contravention of these rules.
As you see the matter depends entirely on the discretion of the appointing authority, if the authority so desires, there shall be no forfeiture of salary (for resignation purpose) neither there will be any disciplinary action. Approach her appointing authority and explain the gamut of the situation and request the authority to exercise the ‘discretion’, they are empowered to, in her favor. This is according to rule and henceforth very much possible.September 28, 2012 at 3:07 pm #74549InactiveThanks again. I shall tell her to write down the entire facts and circumstances before the Appointing authority. I hope your suggestions will help her to find the goal without hazard. I shall inform the fate in due time.
September 29, 2012 at 12:19 pm #74562InactiveNo point of controversy. Setting aside all other eligibility criteria related question, LND can’t be granted in the present case because of a very simple reason that has been explained in Note 1 below rule 174 which states –
“Leave not due is intended to be regarded as an advance of leave and its grant should therefore be -limited to the amount that both can be and will be earned by subsequent duty; further, it is meant to be granted only in exceptional cases of illness and finally when the exceptional step of granting such leave is taken, it shall be irrevocable, except at the request of the officer, who should not be penalized if reasonable anticipations fail to materialize.”
And I repeat he concerned employee is not ill. Now, Here “illness” in Note 1 could not be read as “illness of family members or neighbors”. The essence of the rule is clearly reflected in itself.
Members, that’s all I could suggest. Please suggest if there is any alternative way as I feel that the employee concerned desperately needs it.Dear Mr. Ray,
Thank you for the clarifications!
Pls don’t mind. May I request you to let me know why you reiterate on the conditions of exceptional cases of illness (Cancer, Leprosy, TB etc.) which is there in sub-rule 2 of main rule 174. Whereas, sub-rule 1 provides rather simple application – clause (c) allows admissibility of 90 days LND in one spell and total 180 days in subsequent spells WITHOUT MEDICAL CERTIFICATE. This itself leaves scope of grant of LND without severe medical ground!
It is clear that sub-rule 2 is another provision of LND. It starts as “2. Leave not due can also be granted to such of the temporary Govt. employees…..”. I can’t understand why the the term “further” in Note 1 may not correspond to the phrase “can also” in sub-rule 2 ! Otherwise, relevance of sub-rule 1 is not justified.
With regards. -
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