Central Administrative Tribunal - Delhi
Smt. Sunita Sharma(A-I&Ii) vs Union Of India Through on 11 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.770/2009 New Delhi, this the 11th day of May, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Smt. Sunita Sharma(A-I&II), D/o Shri M. Lal, UDC, C/o D(Est.I/GP-II) Sena Bhawan, New Delhi. R/o H.No. 40-B, Pocket M&N, Janta Flats, Sarita Vihar, New Delhi. .. Applicant (By Advocate: Shri H.K. Chaturvedi) Versus 1. Union of India through Secretary, Ministry of Defence, R.No. 199-C, South Block, Govt. of India, New Delhi. 2. The Director, Ministry of Defence, R.No. 318, B-Wing, Sena Bhawan, Govt. of India, New Delhi. 3. The Joint Secretary (Est.), R.No. 108-A, Grievance & Vig.Cell, Ministry of Defence, South Block, New Delhi. .. Respondents (By Advocate : Shri Rattan Lal) ORDER
Mrs. Meera Chhibber, Member (J) This is 3rd round of litigation by the applicant who has challenged order of compulsory retirement dated 13.03.2007. She has further sought a direction to the respondents to:
refer the matter to the Complaints Committee constituted by the Management as per the guidelines/norms given by the Honble Supreme Court in the case of Vishaka and Others Vs. State of Rajasthan and Others;
direct the applicant to appear before the Medical Board for proving she is mentally fit to resume her duties;
direct the respondents to reinstate the applicant in employment with back wages including the consequential benefits.
2. Applicant was served with charge sheet dated 31.10.2003 (page 35 at 37) with the following allegations:
ARTICLE-I Smt. Sunita Sharma, UDC, Ministry of Defence has engaged herself in activities, which are unbecoming of a Govt. servant and subversive to the discipline of the Department.
ARTICLE-II Smt. Sunita Sharma, UDC, Ministry of Defence has disobeyed orders of the Government directing her to appear before the Medical authorities and also refused to accept the Official Communications issued to her showing an act of insubordination/disobedience.
ARTICLE-III Smt. Sunita Sharma, UDC, Ministry of Defence during the last 3-4 years has been frequently surrendered from different sections where she was worked i.e. D(CR), D(AG), D(B&C), D(Apptt.), D(OL), D(Pay/Service), DMR&F, Defence (Finance), O&M and D(Est.I/Gp.II).
By her above conduct, Smt. Sunita Sharma, UDC, has shown lack of devotion to duty and depicted conduct unbecoming of a Government servant thereby violating Rule 3(1)(ii) & (iii) of CCS (Conduct) Rules, 1964.
3. The Inquiry Officer gave his report with following findings:
(i) Art.I:- The charge that CO has engaged in activities, which are unbecoming of a Government servant and subversive to the discipline of the Department and thereby violating Rule 3(I)(ii)(iii) of CCS (Conduct) Rules, 1964 is proved beyond doubt. Article I is thereby proved conclusively.
(ii) Art.II:- (a) The charge that Smt. Sunita Sharma, UDC, Ministry of Defence has disobeyed orders of the Government directing her to appear before the Medical authorities and also refused to accept the Official Communications issued to her showing an act of insubordination/disobedience thereby violating Rule 3(I)(ii) is proved.
(b) However, this does not prove her lack of devotion to duty. In fact she completed the typing work assigned to her. As such, the charge that she has thereby violated Rule (I)(i) is not proved conclusively.
(iii) Art.III:- (a) The charge that Smt. Sunita Sharma, UDC, Ministry of Defence during the last 3-4 years has been frequently surrendered from different sections where she was working i.e. D(CR), D(AG), D(B&C), D(Apptt.), D(OL), D(Pay/Service), DMR&F, Defence (Finance), O&M and D(Est.I/Gp.II) and by her above conduct, Smt. Sunita Sharma, UDC, has shown lack of devotion to duty thereby violating Rule 3(1)(i) of CCS (Conduct) Rules, 1964 is not conclusively proved.
(b) However, the fact that she has been frequently surrendered bears testimony to her unbecoming conduct as a Government servant and thereby constitutes violation of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964. Therefore, the charge under Rule 3(1)(ii) of CCS (Conduct) Rules 1964 is proved. Copy of this report was given to the applicant. Applicant gave her reply whereupon Disciplinary Authority issued order dated 13.06.2005 (page 69 at 71) imposing the penalty of compulsory retirement on applicant. Being aggrieved, applicant filed an appeal (page 72) but the appeal was also rejected on 27.12.2005.
4. Applicant had challenged the above orders by filing OA No.983/2006 which was disposed of on 29.11.2006 by remitting the matter back to the Appellate Authority to re-examine the matter on the question of proportionality of punishment, keeping in light the service rendered by the applicant and also the past record (page 30 at 31).
5. Pursuant to the above directions, order dated 13.03.2007 was passed holding therein that penalty of compulsory retirement is fully commensurate with the misconduct committed by the applicant. At this stage, applicant filed 2nd OA bearing No.2176/2007 which was disposed of on 13.05.2008 (page 19 at 23) by directing the respondents to write to the Medical Superintendent, Dr. R.M.L. Hospital as they had done earlier vide letter dated 09.06.2003 for arranging a medial board for examining the applicant to see whether her behaviour is due to some insecurities, which is curable or her behaviour is due to her personality. Respondents may draft the letter as per their requirement with intimation to the applicant to appear before the Medical Board on a date to be specified by Medical Superintendent, Dr. R.M.L. Hospital. On receiving the medical report, respondents may pass appropriate orders within a reasonable period.
6. Admittedly, applicant appeared before the Medical Board and was found fit by the Medical Board. Whereafter respondents passed order dated 03.01.2008 (page 14) once again reiterating that the penalty of compulsory retirement is commensurate with the gravity of the offence committed by her and accordingly confirmed the punishment.
7. It is thus the 3rd round of litigation now by the applicant challenging order dated 03.01.2008, order of compulsory retirement. In this OA, after hearing both the parties and with the consent of the counsel an interim order was passed by the Tribunal on 26.04.2010 but that was not accepted by the Honble High Court. The said interim order was set aside by the Honble High Court vide judgment dated 27.09.2010 with the direction to decide the OA strictly within the parameters of law. We are thus considering the OA afresh on merits.
8. It is submitted by the applicant that she was appointed as LDC on 11.03.1982 and promoted to the post of UDC in 1989-90. The medical board has given positive report in favour of the applicant which shows applicant is mentally stable, therefore, naturally when she was directed to appear before the Medical Board earlier, she had refused. She has already worked with the respondents for the last more than 23 years to the entire satisfaction of her superiors. She has not committed any misconduct. On the contrary, it was she, who was harassed. She had given number of representations and complaints to the authorities but none of them have been looked into. Before passing the order, it was incumbent on the respondents to have looked into the complaints given by her. She is a willing worker and at this young age, there is no justification to pass the order of compulsory retirement. She has thus prayed that the OA may be allowed.
9. Respondents, on the other hand, have stated that the orders have been passed after holding a proper enquiry wherein applicant was given full opportunity to defend her case. The orders were passed on the basis of evidence which has come on record, therefore, it calls for no interference. Tribunal cannot sit in appeal on the orders passed by the respondents. Action has been taken against her for violation of Rules for showing conduct unbecoming of a Govt. servant. She was in the habit of calling Police in the office on her own whims thereby vitiating the atmosphere of the office. She even humiliated her seniors by resorting to threatening with physical assault on them which scared her colleagues so much, that they hesitated to enter the office in her presence. She even lodged complaints against the ladies. Once she called the Police on the ground of suspicion that Shri Radhakrishan (her colleague) was following her, which caused disrepute to the Ministry and vitiated the working atmosphere. During the oral enquiry, applicant had admitted that no one would give evidence in her support, therefore, the matter did not warrant enquiry by the Complaint Committee.
10. Moreover, she was earlier also charge sheeted on 14.07.2000 on the charges of frequent unauthorized absence from duty and act of insubordination by not accepting Office Memorandum issued to her and suppression of the fact regarding correct residential address wherein penalty of withholding of increment for one year without cumulative effect was imposed on her vide order dated 24.08.2000. In spite of it, she did not improve her performance/behaviour. The applicant was sent for medical examination to the Medical Superintendent, Dr. R.M.L. Hospital. The opinion of Dr. R.M.L. Hospital reveals that the behaviour of Smt. Sunita Sharma is not due to psychological or psychiatric disorder which means she is herself responsible for the threatening attitude and aggressive misbehaviour.
11. The applicant was frequently surrendered from the different sections in last 3-4 years where she had worked i.e. D(CR), D(AG), D(B&C), D(Apptt.), D(OL), D(Pay/Service), DMR&F, Defence (Finance), O&M and D(Est.I/Gp.II). In view of above, order was rightly passed by the authorities to compulsorily retire her which calls for no interference. They have thus prayed that the OA may be dismissed.
12. We have heard both the counsel and perused the pleadings.
13. Counsel for the respondents invited our attention to earlier orders passed by us on 13.05.2008 in OA No.1276/2007 which read as under:-
Though from the detailed order, which has been challenged by her, we find that respondents had no other option but to pass the said order looking at the record but we feel she needs to be given one opportunity of appearing before the Medical Board, who alone can judge her condition as to whether she needs some medical help if it is due to her insecurity that she is behaving in the fashion as narrated in the orders. May be with medical aid, she might improve. Therefore, without commenting on the orders passed by the authorities at this stage, we feel that first applicant should be asked to appear before the Medical Board regarding her behaviour problems so that on the basis of report given by the Medical Board, respondents may take appropriate decision. Accordingly, we direct the respondents to write to the Medical Superintendent, Dr. R.M.L. Hospital as they had done earlier vide letter dated 09.06.2003 for arranging a medical board for examining the applicant to see whether her behaviour is due to some insecurities, which is curable or her behaviour is due to her personality. Respondents may draft the letter as per their requirement with intimation to the applicant to appear before the Medical Board on a date to be specified by Medical Superintendent, Dr. R.M.L. Hospital. On receiving the medical report, respondents may pass appropriate orders within a reasonable period.
14. Counsel for the respondents submitted that having recorded the above observations, court cannot take a different view now. However, perusal of the above order itself shows that other points were not even looked into while disposing of the above O.A. Similarly when the 1st O.A. was disposed of, it was clearly mentioned that several points have been raised but since proportionality of punishment was not looked into, the matter was remitted back to the Appellate Authority to reconsider the matter meaning thereby that even in this order, no other legal grounds were looked into.
15. Now that we are hearing the matter on merits, we find no irregularity has been pointed out in conducting the enquiry. On the other hand, full opportunity was given to the applicant in the enquiry to defend herself, therefore, as far as enquiry is concerned, no illegality has been found out. Twice this Tribunal had directed the respondents to reconsider the case of applicant first time on the question of proportionality of punishment and second time to decide her case after referring her to the Medical Board. Both the times, respondents have reiterated that she is not fit to be retained in service due to her erratic behaviour of calling the police every now and for making false allegations against the colleagues, which vitiated the atmosphere in the office. No one was prepared to work with her and she was surrendered by various sections wherever she was posted due to these reasons.
16. If we look at these reasons, technically speaking probably respondents had no other option but to pass the order of compulsory retirement because applicant was not getting along well in any section but we still feel that respondents could have dealt with the case with some compassion looking at the fact that she had already put in more than 23 years of services, she is a divorcee. The Doctors have certified she doesnt have any psychiatric problem, so naturally, when she was directed to appear before the Medical Board, she resisted as she claimed she was not sick.
17. Moreover, she has appeared before us on number of occasions. We have never found her misbehaving in the court, quarrelling or raising her voice. On the contrary, she is a well behaved soft spoken person, who assured us that if she is given a chance, she wouldnt resort to lodging unnecessary complaint with the police or security staff. She wanted to work and beseeched us to pass the orders of reinstatement.
18. It was after considering all the above facts that the interim order was passed which has not found favour with the Honble High Court, and directed the Tribunal to decide the case on merits.
19. On merits, no irregularity has been pointed out by the counsel for the applicant. While hearing the matter it looked as if disciplinary authority had taken a different view than what the Inquiry Officer had held because in para 6.1 the Inquiry Officer had observed as follows:-
(ii) Art.II:- (a) The charge that Smt. Sunita Sharma, UDC, Ministry of Defence has disobeyed orders of the Government directing her to appear before the Medical authorities and also refused to accept the Official Communications issued to her showing an act of insubordination/disobedience thereby violating Rule 3(I)(ii) is proved.
(b) However, this does not prove her lack of devotion to duty. In fact she completed the typing work assigned to her. As such, the charge that she has thereby violated Rule (I)(i) is not proved conclusively.
(iii) Art.III:- (a) The charge that Smt. Sunita Sharma, UDC, Ministry of Defence during the last 3-4 years has been frequently surrendered from different sections where she was working i.e. D(CR), D(AG), D(B&C), D(Apptt.), D(OL), D(Pay/Service), DMR&F, Defence (Finance), O&M and D(Est.I/Gp.II) and by her above conduct, Smt. Sunita Sharma, UDC, has shown lack of devotion to duty thereby violating Rule 3(1)(i) of CCS (Conduct) Rules, 1964 is not conclusively proved. However, later we find that in para 5.6 the Inquiry Officer had observed as follows:-
However, Smt. Sharma chose not to appear before the medical authorities. In her appeal dated 20.4.2004 and in her deposition also, she stated that she is quite well and does not need medical attention. As such, her behaviour towards her colleagues, frequent complaints to police on false allegations etc. was a deliberate act. Such action amounts to harassment and coercion of her colleagues/officers/staff. This is a serious breach of discipline. It vitiated the work atmosphere. In view of above, it may be safely concluded that her conduct was unbecoming of a Govt. servant and subversive to the discipline of the Department and shows lack of devotion to duty. As such, the Article I of the charge sheet that CO violated rules 3(i)(ii)(iii) of CCS (Conduct) Rules, 1964 stands proved beyond doubt.
20. In view of above, it cannot be held that the disciplinary authority had taken a contrary view than that of Inquiry Officer.
21. The law is well settled that in disciplinary matter, if the charges are proved, it should be left to the authority to decide the question of punishment and Courts should not interfere with the decision taken by the authorities.
22. We must admit that after hearing the applicant, our heart was with her but we cannot decide the case on sentiments. We have already remitted the matter back to the authorities twice to reconsider but they have reiterated that applicant is not fit to be retained in service. In view of above, we cannot help the applicant. The O.A. is accordingly dismissed. No order as to costs.
(DR. RAMESH CHANDRA PANDA) (MRS. MEERA CHHIBBER) MEMBER (A) MEMBER (J) /jyoti/