Central Administrative Tribunal - Delhi
Anil Kumar Jain S/O Raj Kumar Jain vs Union Of India Through on 12 February, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1228/2008 This the 12th day of February, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Anil Kumar Jain S/O Raj Kumar Jain, R/O M-108 Observatory Compound, Lodhi Road, New Delhi-110003. Applicant ( In person ) Versus 1. Union of India through Director General of Meteorology, India Meteorological Department, Ministry of Earth Sciences, Lodhi Road, New Delhi-110003. 2. Secretary, Ministry of Earth Sciences, Mahasagar Bhawan, Block 12, CGO Complex, Lodhi Road, New Delhi-110003. Respondents ( By Shri H. K. Gangwani, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Anil Kumar Jain, the applicant herein, who was, at the relevant time, holding the post of Meteorologist Grade-I, is aggrieved of the order dated 29.5.2008 compulsorily retiring him from service, which, it is the case of the applicant, came about without hearing him in the matter, but which we find from the pleadings and the accompanying documents, came about sequel to a regular departmental enquiry conducted against him, even though it is a fact that the same was ex parte, wherein the applicant never appeared at any stage. The applicant, who appeared in person, when confronted with the position, in the light of our order dated 5.11.2009 directing the respondents to produce the charge memo, enquiry report and other relevant documents, when it was urged before us that the impugned order is an outcome of enquiry held against the applicant, and which have since been placed on records, would shift his stand to say that he was wrongfully and illegally proceeded ex parte. The facts will determine the issue as debated between the applicant and the counsel representing the respondents.
2. The applicant avers in the Application that he was appointed as Meteorologist Grade-II, and posted under administrative authority of Director General of Meteorology since 28.1.1984, after he successfully completed one year training as trainee Meteorologist Grade-II, under recommendation of UPSC. It is his case that he became patient of psychic disease diagnosed by medical authorities of Safdarjung Hospital, New Delhi by 2001, as a result of continuous state of stress since 1990 when he was posted to Delhi from Agartala. The causes stated by him for his stress are as follows:
(a) That his colleagues and seniors due to his merits and skills and his attitude not to share his scientific and technical achievements with others as per practice prevailed in Scientific Departments in India detested the applicant.
(b) That both lawful and unlawful effort was intermittently made to modify attitude of the applicant.
(c) That the applicant was denied promotion as Director in 1997 to teach a lesson with assurance to promote in next occasion provided he modify his attitude on sharing.
(d) That the actions to harass the applicant enhanced at each occasion when he exhibited specialized skill and knowledge to complete a work assumed to be very difficult if not possible.
(e) That the family of the applicant being depressed due to his failure to take his dues from the department and his denial to abandon India in spite of appreciation and welcome from abroad, initiated usual methods to influence.
(f) That family of the applicant deserted as last warning in early 2001. It is the case of the applicant that he started remaining aloof but continued to put efforts in acquiring scientific and technological expertise. It is further his case that the department decided to get rid of him and that on first opportunity, his salary was stopped and efforts ensued to declare him as mentally handicapped, and the administration succeeded in seeking consent of the Honble Minister for medical examination of the applicant, whereupon the applicant submitted a petition to the President on harassment through application dated 1.5.2002. It is further pleaded that he requested for three days leave from 8.52002 to 10.5.2002 to make efforts to arrange funds for survival as his salary was held up repeatedly, and that he met with a cruel and apathetic attitude and harassment from all his office, family and relatives, resulting in severe attack of psychological trauma, and he even lost interest in life. Hr remained absent from duty for a long period from May, 2002 to November, 2007 due to attack of psychological trauma. It is his case that he contacted his office from Bangalore on 11.11.2006 immediately after recovery. He reported for duty on 23.11.2007 in the office of DGM, New Delhi, the place of his last posting, as he did not receive any response from the DGMs office on his request from Bangalore, but his request for joining was turned down on 4.12.2008. Being apprehensive of decision of the administration, he filed OA No.2322/2007 before this Tribunal in December, 2007, which was disposed of by a short order dated 7.2.2008. The order recorded by this Tribunal reads, thus:
Heard.
2. Relief 8(ii) of the OA cannot be granted by a Single Bench. Moreover, applicant has joined his duty, which is allowed by the respondents vide their letter dated 4.2.2008. OA stands disposed of with a direction that on appraisal of any disciplinary proceedings against him and supply of the documents thereof, applicant shall be at liberty to assail it in an appropriate proceeding. No costs. The applicant pleads that he was not in receipt of any communication about departmental proceedings till 1730 IST on 29.5.2008, when he was asked to receive a sealed envelop that contained an order from the Ministry of Earth Sciences, with copy of advice of UPSC. The order was of compulsory retirement as a penalty with immediate effect. On 30.5.2008 the applicant made a request to the Director General to defer his relieving until his dues were cleared. He received an order from DDGM (A&S) on 30.5.2008 regarding his relieving from 29.5.2008. He was, however, relieved on 30.5.2008. The applicant has also made some complaints with regard to holding of salary etc., but since nothing based thereupon has been urged during the course of arguments, there would be no need to refer to such pleadings in the Application.
3. The order of compulsory retirement has primarily been challenged on the ground of contravention of provisions of Article 311(2) of the Constitution by giving marching orders to the applicant without holding any enquiry. The grouse of the applicant is that no copy of report of the enquiry officer, findings on each article of charge by the enquiry officer and the statement of findings of the disciplinary authority were ever supplied to him. There are allegations of bias and vindictiveness on the part of the respondents, but we may mention that there are no specific instances with regard to the same. The allegations are of general nature.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their reply hotly contested the cause of the applicant. While giving in brief the service particulars of the applicant, it has inter alia been pleaded that the applicant while posted in New Delhi initially proceeded on 30 days earned leave from 2.8.2001 due to the illness of his younger brother. After expiry of his leave, he neither reported for duty nor applied for extension of leave. He was asked to join duty by his officer-in-charge vide office memorandum dated 24.9.2001 but he did not join. He was again asked to join duty by 10.12.2001 vide memorandum dated 29.11.2001 apprising him that if he failed to join duty, action as deemed fit would be taken against him. Thereafter he joined duty on 6.12.2001. During the period of his absence without proper permission/information from 2.8.2001 to 5.12.2001, the applicant had, however, received his salary for the month of September, 2001. After joining on 6.12.2001 he applied for 126 days earned leave from 2.8.2001 to 5.12.2001 indicating the reason of absence as his own illness Bipolar Disorder (psychic disorder). It is the case of the respondents that in fact, the applicant did not submit any supporting documents with regard to his illness and that he was under treatment during the above period of his absence without information. The leave applied for 126 days was not granted to the applicant by the competent leave sanctioning authority and was treated as dies non without break in service. The applicant again absented from duty without information for 44 days from 28.2.2002 to 12.4.2002 suffixing 13.4.2002 and 14.4.2002 being Saturday and Sunday. He reported for duty on 15.4.2002 and submitted joining report along with leave application of the same date indicating the ground as preparatory to resignation. However, the leave applied for as above was not recommended by his officer-in-charge/leave recommending authority, as a result whereof leave was not granted by the competent leave sanctioning authority and the period from 28.2.2002 to 14.4.2002 (46 days) was treated as dies non without break in service. Thereafter the applicant on the last occasion, applied for three days earned leave from 8.5.2002 to 10.5.2002, but after expiry of the leave, he had neither reported for duty nor informed the office about his whereabouts or requested for extension of leave, if any. Office memorandum dated 29.5.2002 was sent at his residential address last known by registered post to join duties by 3.6.2002. The registered letter was, however, received back from postal authorities with remarks Always close. A copy of the said memorandum was also pasted on his door as no one was present at his residence. Another memorandum dated 5.12.2002 was sent at his known two addresses asking him to join by 13.12.2002, which was also received back from postal authorities with the remarks Shifted and No such person. A telegraph message dated 21.1.2003 was again sent at his last known address asking him to join by 27.1.2003 positively. During the said period the applicant neither joined duties nor informed the office about his whereabouts, and thus he was continuously missing since May, 2002. Consequently, it was decided by the disciplinary authority to initiate departmental enquiry proceedings against the applicant under rule 14 of the CCS (CCA) Rules, 1965 on the charges of unauthorized absence. Chargesheet was issued and sent to the applicant at his last known two addresses, i.e., (1) M-108, Observatory Compound, Lodhi Road, New Delhi-110003, and (2) B-1/446, Janakpuri, New Delhi on 18.11.2004 through courier, asking him to submit his written statement of defence within ten days of receipt thereof. The envelop sent at the latter address, i.e., B-1/446, Janakpuri, was received by one Sudha Jain, probably a family member who was available at the said address, whereas the envelop sent at the other address was received back undelivered with remarks Always close. However, no written statement as asked for was received from the applicant. The disciplinary authority appointed enquiry officer as also presenting officer vide order dated 16.3.2006. The said order was sent to the applicant to his last two known addresses by speed post on 30.3.2006 but the same were received back undelivered with remarks from postal authorities as Left without address and Return to sender. It is the case of the respondents that all possible efforts were made to inform the applicant and supply him copies of proceedings so as to enable him to avail himself of all opportunities and defend the charges against him, and that in the course of it, action was also initiated to contact the applicant through public notice published in The Hindustan Times and The Times of India on 28.7.2006, trough which he was made known about the institution of enquiry and he was directed to appear before the enquiry officer or submit a written statement of defence indicating his whereabouts within 15 days of the publication, but no response was received from the applicant with respect to the said public notice. A letter was thereafter sent to him on 13.9.2006 at both his known addressed through speed post informing him the time and venue of the hearing for the enquiry. This letter was also received back undelivered with remarks Left without address. The hearing in the enquiry was held as scheduled on 4.10.2006, but the applicant neither participated in the hearing nor sent any communication to the enquiry officer. With the facts as mentioned above, the enquiry officer decided to hold the enquiry ex parte. It is the case of the respondents that efforts were also made to ascertain the whereabouts of the applicant through other available channel. Deputy Commissioner of Police, Hauz Khas, New Delhi, was requested for issuance of missing person certificate in respect of the applicant. Numerous letters were written to the effect, but no reply from the said police authority was received. On conclusion of the enquiry, the enquiry officer submitted its report on 16.10.2006. With acceptance of the enquiry report by the Honble Minister for Earth Sciences on behalf of the President as the disciplinary authority, copy of the same was sent to the applicant to his last known address vide OM dated 12.1.2007 asking him to make representation or submission, if any, against the findings of the enquiry officer within 15 days of receipt of the said OM, in accordance with rule 17 of the Rules of 1965. However, both the letters were received back undelivered with remarks, which, as translated by the respondents, read No such person in B-1/446. Return to sender. The report was thus submitted to the Minister to record a provisional conclusion regarding suitable penalty to be imposed in the case under rule 11 of the said Rules. Based on the findings of the enquiry officer and also considering other relevant material, the Minister provisionally concluded the imposition of compulsory retirement on the applicant. On obtaining recording of provisional penalty of compulsory retirement upon the applicant, the case was referred to UPSC on 4.4.2007 for advice as the applicant was a Group A officer. Meanwhile, the applicant came to office for duty by submitting joining report dated 19.11.2007. Even though, he was not under suspension, he reported for duty after remaining absent for more than five and a half years unauthorizedly, and the fact that departmental proceedings initiated against him on the charges of unauthorized absence were in final stage, the administrative Ministry, DOPT etc. were consulted on the course of action to be adopted in such situation. On advise from the nodal authority, the applicants joining report dated 19.11.2007 was accepted and accordingly he was allowed to join duty.
5. The applicant moved this Tribunal by way of OA No.2322/2007. The request therein was to allow him to join duty and quash the disciplinary proceedings, if any, initiated against him. The said OA was disposed of in the manner already indicated above. On receipt of the advice of UPSC and confirmation of the Minister, the disciplinary authority, imposed the penalty of compulsory retirement upon the applicant vide order dated 29.5.2008 with immediate effect. The applicant was supplied the penalty order along with copy of the advice of UPSC dated 10.4.2008, which was handed over to him on 29.5.2005 itself. Consequent upon the above order, relieving order was also issued on the same day to take further follow up administrative action. Reference is then to the applicant filing contempt petition bearing CP No.254/2008 in OA No.2322/2007, which was disposed of by passing the following order:
After the orders are passed in OA No.2322/2007, respondents have come up with an order dt. 29.05.2008.
Ld. Counsel submits that in spite of the directions of the Tribunal, the relevant documents have not been made available to the petitioner and this amounts to contempt and is actionable.
Since the final order has been passed by the respondents, we do not think it necessary to proceed further with the present Contempt Petition. Accordingly, it is closed with liberty to move appropriately if any grievance still subsists. The applicant also filed another OA No.1336/2008, which was dismissed by this Tribunal in limine on 14.7.2008. We may reproduce the relevant part of the said order:
In totality of the facts and circumstances of the case as mentioned above, we are of the considered view that the concerned authorities who were not even intimated about the physical disorder which the applicant might have gone through, had no option but for to hold the charges against the applicant as proved. We are further of the view at this stage the applicant has brought no substantial evidence that may show that he was in fact suffering from any mental disorder or that his physical condition was such that he was not even able to intimate the office that he was unable to attend his duties. In wake of the fact that the applicant remained on wholly unauthorized absence for such a long period, we find no infirmity in the order dt. 29.05.2008, compulsorily retiring him from service.
Finding no merit in this Application, we dismiss the same in limine. The allegations made by the applicant with regard to vindictiveness and biased attitude of the respondents have been denied and termed as wild and without any purpose. It is also pleaded that the applicant has produced no supporting proof with regard to his illness, and even when at the later stage he was asked to submit the same vide OM dated 3.1.2008, he failed to do so.
6. The OA, it appears, was dismissed in default. The applicant has filed an application seeking restoration as also an application for condoning the delay in filing the application seeking restoration. We may mention that the Application was dismissed on 10.12.2008 by recording the following order:
Counsel for applicant reports no instructions. Original application is dismissed. Original application is dismissed for non-prosecution. The application aforesaid was allowed vide order dated 5.11.2009. It is on that date that we directed the respondents to place on record the relevant documents, as mentioned above, which have since been placed on records.
7. The applicant has also filed rejoinder, contents whereof may need no mention as they are reiteration of the pleadings made in the OA. The applicant refers to the recommendation made by the respondents for his medical examination before 18.3.2002. It is his case that the authorities were in close touch with the applicant and were of the opinion that he was suffering from such physical/mental disorder which would interfere with efficient discharge of his duties.
8. We have heard the applicant who appeared in person and Shri H. K. Gangwani, learned counsel representing the respondents. All that is urged by the applicant during the course of arguments is that there was no question for him to have not attended to his duties if he was medically fit. That such a conduct is possible only by an insane man and that is what exactly the applicant has been pleading all through. We are unable to accept the plea raised by the applicant as mentioned above. There could be variety of reasons for a person not to attend to his duties, one being wholly irresponsible towards his duties. Sans any proof in the shape of medical advise or treatment, it is not possible to accept on the mere fact that since the applicant was absent, it should be held that he was suffering from mental disorder, and thus incapable of attending to his duties. The intensity of physical disablement of the applicant can be assessed only from the evidence of his ailment, physical or mental, and the applicant has singularly failed to bring even an iota of evidence on that behalf either before the concerned authority or even before us after he has been visited with the penalty of compulsory retirement. Further, it is not even the case of the applicant that he was so terribly sick that he was unable to inform the respondents about his ailment for a long time spanned over a period of more than five years. It is not a case at all where the respondents may have violated the provisions of article 311 (2) (b) of the Constitution, as surely, the order visiting the applicant with the penalty came to be passed after holding proper enquiry by following all the rules and procedure. At every possible stage, all out efforts were made to hear the applicant, but he would not be available at his both known addressed with the respondents. We need not refer to the way the efforts were made by the respondents here as the mention of same has already been made. It is not the case of the applicant that he had changed his address of which intimation was given to the respondents. In absence of any evidence whatsoever with regard to the mental condition of the applicant of such intensity that he was unable to attend duties for a long period and even unable to intimate the respondents with regard to the same, we find no scope whatsoever to interfere in the matter.
9. Finding no merit in the OA, we dismiss the same, leaving, however, the parties to bear their own costs.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/