Central Administrative Tribunal - Allahabad
Shushil Kumar vs Union Of India on 22 February, 2024
O.A./933/2011
(Reserved on 19.02.2024)
Central Administrative Tribunal, Allahabad
***
Original Application No.933 of 2011
nd
Pronounced on this the 22 Day of February, 2024.
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
Sushil Kumar S/o Shri Mataroo Lal R/o Village Dinauli (Gorwa), P.O.
Jajumai District- Ferozabad (UP)
...........Applicant
By Advocate: Shri S.K. Kushwaha
Versus
1. Union of India through Under Secretary, (Debts Recovery
Tribunal), Ministry of Finance (Department of Financial
Services), Govt. of India Jeevan Deep Building, Parliament Street,
New Delhi
2. The Presiding Officer, Debts Recovery Tribunal, 9/3 Panna Lal
Road, Allahabad
...Respondents
By Advocate: Shri Rajni Kant Rai
ORDER
By Hon'ble Mr. Mohan Pyare, Member (A) Present Original Application has been filed by the applicants seeking the following reliefs:
"(i) to issue a writ, order or direction in the nature of Certiorari quashing the impugned order of termination dated 22.02.2011, passed by the Respondent No.2, in the purported exercise of powers conferred upon it under sub-rule-(1)(a) of the Rule-5 of the CCS (Temporary Services) Rules, 1965 and with reference to the notice published in the daily news paper 'Amar Ujala" dated 04.10.2004 (wrongly referred 06.10.2004) (Annexure-A-1 to Compilation No. 'I' of this petition.) Page 1 of 11 O.A./933/2011
(ii) to issue a writ, order or direction in the nature of Mandamus directing the Respondent No.2 to reinstate the petitioner in service as Peon with all consequential benefits thereof as if no such unlawful order would have ever been passed, within a period as may be fixed by this Hon'ble Tribunal.
(iii) to issue any other suitable writ, order or direction in the facts and circumstances of the case which this Hon'ble Tribunal may deem fit and proper.
(iv) to award cost of the petition in favour of the petitioner."
2. Brief facts of this case as narrated in the Original Application are that the applicant was initially appointed as company paid staff in Group 'D' category in the Office of the Court Liquidator, Kolkata and later on pursuant to the judgment rendered by the Hon'ble Supreme Court dated 27.08.1999 filed by such staff claiming absorption with the respondents herein against Group 'C' & Group 'D' posts, the petitioner was appointed vide memorandum dated 19.09.2000 on the post of Peon after having been found fit by the screening committee in the then pay-scale of Rs.2550-3200 and was placed on probation for a period of two years extendable or curtailable by the competent authority. Pursuant to the aforesaid appointment order, the applicant joined his services in the aforesaid capacity with the Respondent No.2 with effect from 03.10.2000. However, the applicant could not attend his duties with effect from 12.07.2004 onwards continuously till 15.08.2010 as he was suffering from epilepsy. The applicant also received several attacks of epilepsy earlier in 1999 and later but he did not take any treatment due to his meager salary. Suddenly in the night of 11.07.2004, the applicant received another attack of epilepsy and his family members took him to Lucknow where the applicant underwent medical treatment from a Registered Medical Practitioner from 12.07.2004 to 20.01.2005. Thereafter, the applicant was taken by his family members from Lucknow to Ferozabad where he remained under medical treatment from 21.01.2005 to 24.02.2007. When there was no improvement in his Page 2 of 11 O.A./933/2011 condition, the applicant went to the Govt. Hospital namely N.P.H.C. Katena Harshe District Ferozabad and underwent treatment from 24.02.2007 to 26.03.2007 in O.P.D. No. 1174. Then at Ferozabad itself, the applicant contacted another qualified Ayurvedic Doctor and took medical treatment from 26.03.2007 to 01.06.2010.
3. After the prolonged medical treatment, the applicant was cured from the aforesaid disease and for complete check-up, he again contacted the above referred Govt. Hospital at Ferozabad on 02.07.2010 (O.P.D. No.2140) and after he was medically examined, he was found completely mentally and physically fit to resume his duty vide Medical Certificate dated 14.08.2010 issued by the Medical Officer Incharge of the aforesaid Govt. Hospital. Thereafter, the applicant immediately reported to the Respondent No.2 for duty and gave him a joining report dated 16.08.2010 along with the medical certificates. Respondent No.2 vide a letter dated 18.08.2010 addressed to the Respondent No.1 furnished the details of the case of the applicant pointing out that the petitioner remained absent without prior permission and asked to intimate about future course of action to be taken in the case of the petitioner upon joining report of the applicant dated 16.08.2010. Subsequently, vide the impugned order dated 22.02.2011, the services of the applicant were terminated forthwith by Respondent No.2 in the exercise of powers conferred upon it under Rule-5 (1)
(a) of the CCS (Temporary Services) Rules, 1965 and also with reference to the notice published in the daily newspaper 'Amar Ujala' on 04.10.2004 in Allahabad and Ferozabad editions.
4. We have heard learned counsels appearing for the parties.
5. Submission of learned counsel for the applicant is that the impugned order dated 22.02.2011 has been passed as a punishment upon the applicant for the misconduct of unauthorized absence without giving him any opportunity of being heard. Further, the notice referred to above in the news item dated 04.10.2004 published in 'Amar Ujala' news paper i.e the notices Page 3 of 11 O.A./933/2011 dated 16.07.2004 (wrongly mentioned as 26.07.2004) and 17.08.2004 were not served upon the applicant by the postal authorities and were returned to the Respondent No.2 as undelivered with the remarks "not met proceeded outside" and further the news item itself did not come into the knowledge of the petitioner during the period from 12.07.2004 to 20.01.2005. It is also stated that the applicant had been appointed by Respondent No.1 vide an appointment order dated 19.09.2000 and as such the impugned order of termination passed by the Respondent No.2 which is lower in rank than Respondent No.1 and not the appointing authority of the applicant is not valid under the law. Learned counsel for the applicant argued that under the law "unauthorized absence" for a long time is a serious misconduct warranting disciplinary proceeding to ascertain as to whether such absence was willful or on account of negligence of the Govt. servant due to some unavoidable circumstances that prevented him from attending the office and performing his duties. He further argued that Rule -5 (1) (a) of the CCS (Temporary Services) Rules, 1965, referred to above, whereunder an innocuous order of termination on the ground of unsuitability can be passed, has illegally and wrongly been invoked by the Respondent No.2 in the present facts and circumstances of the case.
6. Learned counsel for the applicant argued that the applicant was seriously ill and he was completely unfit and unable physically and mentally to attend the office and to perform his duties due to attacks of Epilepsy which he has been receiving from time to time even before joining the Respondent No.2 after having been appointed. The absence from duty without prior permission or intimation in itself does not constitute misconduct unless it is proved that the same was willful, deliberate and on account of negligence. He states that the applicant, against two years of probationary period, as a matter of fact, has worked continuously for more or less four years during which no order of confirmation or extension of probationary period was ever passed. Hence, the Page 4 of 11 O.A./933/2011 petitioner shall be deemed to have been declared confirmed as per the law of the land and as such the CCS (Temporary Services) Rules, 1965 has no scope to play in the present case. Even otherwise, if it is considered that the applicant was on probation for want of specific order of confirmation, it is submitted that in the facts and circumstances of the case, the impugned termination order having been passed upon an allegation of unauthorized absence from duty which is a serious misconduct under the law where the rule of principles of natural justice comes into play and as per the law of the land, even an employee on probation is entitled to protection of Article - 311 (2) of the Constitution of India, if he is thrown out of employment on the basis of certain alleged misconduct.
7. Submission of learned counsel for the respondents is that the applicant is not a regular employee of the Debt Recovery Tribunal or the Union of India. He was an ex-employee of the Court Liquidator, Kolkata and the Ministry of Finance had appointed him by letter dated 19.09.2000 and he was placed on probation for a period of two years with an option to the employer to reduce or enhance the said period. As per the said letter his services were liable to be terminated without assigning any reason. It is also stated that the applicant's relieving order and service book from the office of Court Liquidator, Kolkata had not been procured by him and the intermittent and continued absence from duty did not make it possible to regularise his service. It is further argued that during the first two years of probation the applicant was given a number of memorandums and warnings for being unauthorisedly absent on as many as six occasions covering a period of more than 69 days during which he was only a temporary employee under probation, therefore, the case of the applicant cannot be equated with other permanent employees and an employee under probation remaining absent for six years without explaining the reasons for absence or offering flimsy/false reasons, is not liable to be protected under law.
Page 5 of 11O.A./933/2011
8. Learned counsel for the respondents states that the termination of the applicant is made under provisions of Central Civil Services (Temporary Service) Rules, 1965 after adopting due procedure as prescribed under the Rules as his service was of temporary status. The memorandum dated 26.07.2004 and 17.08.2004 were sent by registered post to him directing him to explain the reasons for his absence from the office without prior permission of the authority. When no reply was received from the applicant, a notice dated 04.10.2004 was published in the widely circulated newspaper namely Amar Ujala, Allahabad and Agra editions published on 06.10.2004, but the applicant neither reported for duty nor submitted any reply in support of his unauthorised absence from duty, therefore, it is wrong to say that the applicant was not given opportunity of being heard. It is further submitted that the Presiding Officer, Debts Recovery Tribunal, Allahabad is authorised to make appointment and take action for termination of services to the post of peon in Debts Recovery Tribunals, moreover, the order for termination from his service was taken with the approval of Ministry of Finance, Department of Financial Services, New Delhi i.e. Respondent No.1. He argues that the plea of the applicant that he was undergoing medical treatment of a registered medical practitioner from 12.07.2004 to 20.01.2005 at Lucknow, and from 21.01.2005 to 01.06.2010 at Firozabad from different doctors cannot be accepted. The applicant was Central Government Health Scheme (CGHS) beneficiary and he was issued the CGHS card from the office but the applicant has not consulted the CGHS doctors where consultation and medication is available free of cost. Further if he was seriously ill then he should have been hospitalized in the hospital and taken proper treatment. During the period of his absence from the office i.e. more than 6 years he never sent any application or medical certificate stating that he was seriously ill or admitted to any hospital. Therefore, the contentions of the applicant that he was undergoing medical treatment during the period of his absence from office for a period of 6 years is an afterthought and the proof of treatment relied upon Page 6 of 11 O.A./933/2011 by the applicant has been procured by him and affords no credence to such proof.
9. Learned counsel for the respondents further points out that as per the guidelines issued by the Department of Personnel & Training vide O.M. No.13026/2/2010-Estt.(L) dated 29.03.2012 it has been clarified to all the units of Government of India that in case any employee of the Government of India is absent from his duty for more than 5 years then it will be taken as deemed resignation from the services.
10. In his rejoinder, learned counsel for the applicant has reiterated the same facts and stated that it is not the case where Govt. servant has absconded from duty or remained "unauthorized absence"
willfully but this was on account of compelling circumstances which led to absence in such manner which cannot be termed "willful" without proper opportunity of being heard and unless a categorically finding by the Inquiry Officer is recorded to this effect out of a disciplinary proceeding conducted in the manner as provided under Rule-14 of CCS (CCA) Rules, 1965. In the present case, it is not that the petitioner has merely been punished with some minor punishment of stoppage of annual increment etc. but he has been thrown out of employment under the garb of "termination order" which in the facts of the case amounts to "removal from service".
11. To further consolidate his arguments, learned counsel for the applicant has placed reliance on the judgement of the Hon'ble Supreme Court of India in the case of Prithipal Singh Vs. State of Punjab (LAWS(SC)-2000-4-60) decided on 28.04.2000 wherein it has been held that it was obligatory for the respondent to have given an opportunity to the appellant before passing the discharge order where the foundation of passing the order of discharge is any material of misconduct. He has also referred to the judgement of the Hon'ble Supreme Court in the case of Krushnakant B. Parmar Vs. UOI and Ors. (2012) 1 Supreme Court Cases (L&S) 609 decided on 15.02.2012 to substantiate his argument that if Page 7 of 11 O.A./933/2011 absence is due to compelling circumstances under which it is not possible to report for or perform duty, such absence cannot be held to be willful and employee guilty of misconduct. Learned counsel for the applicant has relied on para 17 of the aforesaid judgement which reads as under:
"17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unathorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc. but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant."
12. We have considered the rival contentions of learned counsel appearing for both the parties and perused the entire documents on record.
13. The appointment order dated 19.09.2000 stipulates the following conditions:
"क. बिना किसी कारण बताए दोनो पक्षों की ओर से एक महीने की सच ू ना पर इस नियक्ति ु को समाप्त किया ज सकेगा। तथापि, सरकार को यह अधिकार होगा कि वह उनकी सेवाओ को अविलम्ब या नोटिस की निर्घारित अवधि समाप्त होने से पर्व ू , नोटिस की अवधि या उसकी समाप्त न हुए भाग के लिए वेतन और भत्ते के बराबर की राशि का भक् ु तान करके समाप्त कर दें ।
.......
ग. वे दो वर्ष की अवधि के लिए परिवीक्षा पर होेगे जिसे सक्षम अधिकारी के विवेकानस ु ार बढ़ाया या घटाया जा सकेगा।"
14. The applicant has contended that the impugned termination order dated 22.02.2011 has been passed as a punishment for the misconduct of unauthorized absence invoking the wrong rule which applies for termination on the ground of unsuitability. He Page 8 of 11 O.A./933/2011 has further alleged that the said order has been passed by the incompetent authority and there has been no disciplinary proceeding affording the applicant an opportunity to defend his case. The applicant has excused himself for not informing the respondents department about his illness and his treatment which caused his absence for a period of about six years stating that he did not receive any memo sent by the respondents to explain his absence and the notice published in the aforementioned newspaper also did not come to his attention during the said period as he was at Firozabad undergoing treatment for his illness of epilepsy. The respondents, on the other hand, have averred that the termination of the applicant is made under provisions of Central Civil Services (Temporary Service) Rules, 1965 after adopting due procedure as prescribed under the Rules as his service was of temporary status and the applicant had been granted sufficient opportunity to explain his absence even through the newspaper publication. He states that the impugned order has been passed by the competent authority with the permission of the appointing officer.
15. Rule 5 (1) of CCS (Temporary Service) Rules, 1965 is as under:
"5. Termination of temporary service.
(1) (a) The services of a temporary Government servant shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;
(b) the period of such notice shall be one month.
Provided that the services of any such Government servant may be terminated forthwith and on such termination, the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.
Page 9 of 11O.A./933/2011 Note:- The following procedure shall be adopted by the appointing authority while serving notice on such Government servant under clause (a).
(i) The notice shall be delivered or tendered to the Government servant in person.
(ii) Where personal service is not practicable, the notice shall be served on such Government servant by registered post, acknowledgement due at the address of the Government servant available with the appointing authority.
(iii) If the notice sent by registered post is returned unserved it shall be published in the Official Gazette and upon such publication, it shall be deemed to have been personally served on such Government servant on the date it was published in the Official Gazette."
16. The notice dated 04.10.2004 published in the newspaper 'Amar Ujala' on 06.10.2004 in the Allahabad and Agra edition of the paper giving reference of the memorandums sent to the applicant which were returned unserved as annexed with the counter affidavit clearly establishes the claim of the respondents of having given opportunity to the applicant to explain his case and it also reveals that the notice can be deemed to have been served upon the applicant. Even otherwise, the applicant was duty bound to keep the respondent authorities informed about his illness and treatment without waiting for a memorandum from them. The absence of about six years from 2004 to 2010 without informing cannot be excused as the applicant was suffering from epilepsy which causes episodes of seizures and not a continuous illness which would have kept the applicant from informing the respondents anytime during those six years of absence, therefore, the absence of the applicant can be construed to be wilful. Thus, the judgments relied upon by the applicant as quoted in para 10 above cannot be applied in the present case. The applicant could also have availed the CGHS facility, of which he was a beneficiary, for treatment if he could not afford it earlier instead of Page 10 of 11 O.A./933/2011 visiting hospitals the credence of the reports of which cannot be verified. The applicant was on probation and his services were also not confirmed if not extended and the above quoted appointment order dated 19.09.2000 clearly stipulates that the employer could terminate the services of the applicant without assigning any reason with a notice period of one month. Besides the DoPT notification dated 29.03.2012 provides that "Unless the President, in view of the exceptional circumstances of the case, otherwise determines, a Government servant who remains absent from duty for a continuous period exceeding five years other than on foreign service, with or without leave, shall be deemed to have resigned from the Government service." Respondent No.2 had also consulted Respondent No.1 vide its letter dated 18.08.2010 (Annexure A-10) with reference to the applicant's case before taking the final decision.
17. In view of the above facts and deliberation, the applicant fails to establish his claims and the O.A. is liable to be dismissed since the Court finds no infirmity in the impugned order dated 22.02.2011 that requires any interference at its end. Thus, the O.A. is dismissed. All associated M.As. also stand disposed of. No costs.
(Mohan Pyare) ( Justice Om Prakash VII)
Member (A) Member (J)
Madhu
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