Central Administrative Tribunal - Delhi
Mrs. Sunita Sud vs Directorate Of Education on 10 September, 2014
sent CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 665/2012 New Delhi this the 10th day of September, 2014 Honble Mr. A.K.Bhardwaj, Member (J) Honble Mr. V.N.Gaur, Member (A) Mrs. Sunita Sud, 9D, Vijay Mandal Enclave, New Delhi-110016 Applicant (By Advocate Mr. Yogesh Sharma) VERSUS 1. Directorate of Education, Through Director of Education, Old Secretariat, New Delhi-54 2. The Government National Capital Territory of Delhi Through Chief Secretary, GNCTD, Delhi Secretariat, IP Estate, New Delhi-2 Respondents (By Advocate Ms.Harvinder Oberoi ) O R D E R Honble Mr. A.K. Bhardwaj, Member (J) :
Vide Memorandum No.4416 dated 28.05.2002, the applicant was charged with the misconduct of remaining absent from duty unauthorizedly w.e.f. 6.07.1998 till the date of issuance of the charge sheet. The Inquiring Authority found the charge as not proved. The disciplinary authority disagreed with the Enquiry Officer and issued disagreement note dated 10.03.2011 to applicant. According to the disciplinary authority, the Inquiring Authority had not considered the following facts in true spirit:-
(i) Though the applicant had applied for medical leave, but the same was not granted to her by the competent authority for want of medical certificate from Government Hospital;
Merely because in the attendance register, the applicant was shown on leave, there could be no presumption that the competent authority has sanctioned the leave as there should have been specific order in this regard;
No intimation to applicant about rejection of her leave application could not be construed as deemed sanction as before availing the leave the applicant was duty bound to get it sanctioned from the competent authority;
Despite repeated directions to get herself medically examined in a Government Hospital and submit medical certificate, the applicant did not produce any such certificate nor she produced any documentary evidence regarding refusal by the Government hospital to conduct her medical examination.
The applicant submitted her reply to the disagreement note and espoused:-
(a) That the Enquiry Officer who dealt with the issue of not sanctioning of medical leave by the competent authority recorded that she had submitted medical certificate from Government hospitals. In her reply on other points also, the applicant emphasized that the enquiry officer had dealt with the points and could find the charge as not proved. She further put forth that if the rejection of application for leave was not communicated to the applicant within a specific time limit, there was a presumption that leave was sanctioned;
(b) When she reported in different Government hospitals , the authorities refused to conduct the medical examination and one of the hospitals, i.e. PGI Hospital, Chandigarh to which she was directed to report for medical examination, issued the certificate of her fitness.
Having considered the reply to disagreement note, the disciplinary authority imposed the penalty of reduction to one lower stage in the time scale of pay for a period of one year upon the applicant with further direction that she will not earn increment of pay during the period and after expiry of the period the reduction will not have the effect of postponing the future increment of her pay. The entire period of her unauthorized absence was directed to be treated as dies-non, without break in service. The appeal preferred by the applicant against the penalty order was rejected in terms of order No DE.7/452/S/TGT/Vig/HQ/NGV/2011/8210-8215 dated 20.09.2011. Thus, the applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, praying therein:-
A. Quash the orders dated 20th September 2011 and 30th May 2011 and connected memorandums/orders dated 10.08.2007, 03-3-2005, 12-07-2002, 28-5-2002 and 18-2-2003.
Uphold Enquiry Report dated 5th October 2010.
Direct the respondent to treat the period 06.07.1998 to 22.09-2001 as valid leave.
Direct the respondent to accept the resumption of duties by the applicant, for all practical purposes including pay, leave entitlement and promotions from the date of submission of her joining report to DDE (South) i.e. 22-09-2201.
Direct the respondent to pay the arrears of salary and other benefits to the applicant w.e.f. 22-09-2001 along with interest @ 8% on the arrears.
Direct the respondent to pay a sum of Rs.5000/- per month as damages for the period between 22-09-2001 to 03-03-2005.
Any other relief, which this Honble Tribunal deems fit may kindly be granted in favour of the applicant and against the respondent.
2. The learned counsel for applicant heavily relied upon the report of enquiry officer and submitted that When for the period from 6.11.1998 to 30.11.1998, the applicant had been granted earned leave/medical leave/extra ordinary leave, she could not be treated on leave without permission during such period. For the absence of the applicant from 1.12.1998 onwards, no request of the applicant for leave had been rejected, thus in terms of Rule 7 of the CCS (Leave Rules), the leave should have been deemed sanctioned. Besides, the findings and views of Enquiry Officer, learned counsel relied upon the various letters written by the applicant to Deputy Director of Education informing him that though she visited the administration branch of PGI, Chandigarh and other Government hospitals suggested by the department for her medical examination, no medical examination was conducted by the said Institutes/Hospitals. She specifically mentioned about the Deen Dayal Upadhyayay Hospital, New Delhi and PGI, Chandigarh. The third submission put forth by the learned counsel was that the period of absence of applicant could not have been treated as dies-non without giving her an opportunity to make a representation in this regard. No other point/ground raised in the OA was pressed by the learned counsel.
3. In the counter reply filed on behalf of respondents, it has been espoused that:-
(i) As per the intimation made available by the Principal of the concerned School on 12.01.1999, the applicant had neither given any leave application w.e.f. 6.07.98 to 22.07.1998 nor any permission for station leave had been granted to her;
(ii) When the applicant applied for medical leave supported by the medical certificates of private nursing home, she failed to comply with the directions given by the competent authorities;
(iii) Simply submission of application for leave could not be construed by the applicant as sanction of leave and the kind of leave to be granted to an employee depend upon his/her leave account.
(iv) When on 29.01.1999, the Memorandum No. 8688 was issued to applicant advising her to submit medical certificate from a Government hospital in the prescribed form, instead of complying with the directions, she again submitted application for extension of medical leave supported by certificate from private nursing home. When again she was issued Memorandum no. 1735-36 dated 11.05.1999 directing her to report for duty immediately after summer vacation along with all medical certificates/leave applications and was also directed to present herself before the medical board of PGI Hospital, Chandigarh for medical examination, instead of complying with the directions, she made another application for extension of leave with medical certificate of private nursing home.
(v) When she was advised for her medical examination at General Hospital, Sector 16, Chandigarh /L.N.Hospital, Ansari Road, New Delhi. She made lame excuses and did not go by that advice. Even when the hospital authorities were requested to conduct her medical examination, instead of reporting to the hospital authorities, she reported for duty w.e.f. 24.09.2001 along with joining report and submitted the fitness certificate. But having submitted the joining report for a moment, she again absented herself unauthorizedly.
(vi) Even after issuance of charge sheet to her, she joined duty only on 3.3.2005.
4. We heard learned counsels for parties and perused the record. In the year 1998, when the applicant was posted as TGT (English) in Govt. Girls Senior Secondary School, Sector-V, Ambedkar Nagar, the Principal vide his letter ref. no NIL dated 26.11.1998 brought out that she was on leave w.e.f 6.7.98 to 30.11.98 i.e. on earned leave between 6.7.98 to 31.7.98, earned leave on medical ground w.e.f. 1.08.98 to 11.08.98 and EOL on medical grounds w.e.f. 12.8.98 to 30.11.98. Thus, the School authorities were required to forward all leave applications of the applicant and the Principal vide his letter dated 11.12.1998 forwarded the same. In the circumstances a Memorandum no 8688 dated 29.01.1999 was issued to applicant directing her to submit the medical certificate from a Government Hospital in the prescribed form. However, she gave a reply dated 1.03.1999 that she had been undergoing treatment at Himachal Nursing home since July 1998 and kept on submitting applications for extension of leave on medical ground. She was repeatedly advised by the respondents to get her medical examination conducted by Medical examination Board of PGI, Hospital Chandigarh or General Hospital Sector 16, Chandigarh or L.N.Hospital, Ansari Road or Deen Dayal Upadhyay hospital, New Delhi and simultaneously, the intimations were also sent to the concerned authorities in the Hospital to do the needful. However, instead of subjecting herself to medical examination and allow the concerned board to submit a report regarding her health, the applicant kept on avoiding the same and making representation to the respondents taking the stand that the Institutes/Hospitals were not making any arrangement for her medical examination. Surprisingly, when the applicant could not succeed in getting herself medically examined regarding state of her health, she could conveniently procure the fitness certificate from PGI hospital, Chandigarh in the year 2001 to report for duty for a moment only. It is also quite surprising that when the applicant was posted in GGSSS, Sector 5, Ambedkar Nagar, New Delhi she availed treatment at Saket Institute of Orthopaedic Rehabilitation, Panchkula (Haryana), PGI Hospital, Chandigarh and General Hospital, Sector 16, Chandigarh. There is no explanation brought by the applicant to the fore that how instead of taking treatment in Delhi, the applicant had to avail the same at Chandigarh. Further, when for most of the period of absence i.e. from 6.7.98 to 3.3.2005, the applicant kept on applying for leave on medical ground, on 23.02.1999, she made an application to Directorate of Education, Govt. of NCT of Delhi for posting her on deputation to Haryana Government. In this regard, the applicant has herself placed a memorandum No 1735 dated 11.05.1999 on record which reads as under:-
M E M O R A N D U M Reference this office letter dated 29.1.99 wherein she was directed to submit medical certificate from a Govt. Hospital in the prescribed form i.e. form No.4. But the requisite certificate has still not been received in this office till date. Ms. Sud, is hereby directed to report for duty immediately after summer vacation alongwith all medical certificate/leave application as directed by the D.E. for further necessary action in the case. If she is still unwell she should present herself to the Medical Board of PGT Hospital, Chandigarh for medical examination under intimation to this office.
Further in regard to her application dated 23.2.99 regarding request for posting on deputation to Haryana Govt. Ms. Sunita Sud, is hereby intimated that her lien to Chandigarh Govt. Education Deptt. has not been granted to her by the D.E. and for this purpose she is directed to produce the acceptance order of her deputation from Chandigarh Govt. with their terms and conditions of deputation in the first instance. Thereafter the period of deputation will be finalized/conveyed by Chandigarh Govt. and then only she could be relieved on lien after completing all formalities as per rules.
Ms. Sunita Sud, TGT Sd/-
6171, Duplex Modern ( Indra Pangtey )
Housing Complex, Manimajra, Deputy Director of
Chandigarh. Education
District South
A person can either be ill or fit to perform duty. It is difficult to accept that the applicant was unwell and unable to perform duty in GGSSS Sector 5 Ambedkar Nagar and was fit enough to take a job on deputation to Government of Haryana. We are convinced that the absence of the applicant for a long period from 6.07.98 to 3.3.2005, including the period during the pendency of enquiry, was grave misconduct and in imposing the penalty of reduction to one lower stage in the time scale of pay for a period of one year, the disciplinary authority has taken a very lenient view. The way the factual position developed in the matter, we are also convinced that neither the applicant was interested in reporting for the duty in the School, as she was interested to stay at Chandigarh (Haryana) nor the respondents were keen to bring her to book expeditiously and both the parties were more interested in missive. When the Inquiring Authority could take a view that in the absence of rejection of the applications made by the applicant for medical leave, there was a presumption that leave was granted, the disciplinary authority took a view that on the basis of remarks made in the attendance register, i.e. leave and submission of applications for leave, the applicant could not have presumed that the leave was granted. In terms of Rule 19 (3), the authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date. In the present case, the respondents required the applicant to subject herself for medical examination for second medical opinion, but the applicant avoided the same on one pretext or the other. Normally, when the rejection of leave application is not communicated, the employee may presume that the application was accepted, but in a case where the applicant was advised to subject herself for medical examination for second opinion, she was clearly impressed upon that her leave was not sanctioned, thus the disciplinary authority rightly disagreed with the view of the Inquiring Authority that in the absence of communication of rejection of leave application, the applicant was not justified in presuming that her leave was sanctioned. The view of disciplinary authority was that in the absence of sanction of leave, the mere remark of leave in the attendance register was of no consequences. May be the view taken by the disciplinary authority that before availing the leave, the applicant was duty bound to ensure that the leave was sanctioned is wan, but when the applicant was repeatedly directed to get herself medically examined from a Government hospital and submit medical certificate and she neither produced any medical certificate nor could produce any evidence regarding refusal of her medical examination by the Government Hospital and the absence was for a period of more than 6 years, the penalty imposed upon the applicant is justified and does not call for any interference. In Rule 25 (2) of the Leave Rules (FRSR Part III), it has specifically been provided that the willful absence from duty after expiry of leave renders a Government servant liable to disciplinary action. In the present case, leave sanctioned to applicant expired on 30.11.1998 and thereafter there was no order passed by the competent authority sanctioning or extending her leave. In the circumstances, she was rightly subjected to disciplinary proceedings. Nevertheless, as far as treatment of the period of absence is concerned, when admittedly for the period from 6.7.98 to 30.11.1998 the applicant had been sanctioned leave, the said period should not be treated as dies non but should be treated as a period spent on leave of the kind sanction to the applicant. As far as the period from 1.12.98 to 28.05.2002 is concerned, once, the disciplinary authority found that no leave was sanctioned to the applicant for such period the period had to be treated as dies non. However, the order of disciplinary authority is in respect of such period which was subject matter of the charge sheet i.e. upto 28.05.2002 and cannot be considered to have covered the period from 29.05.2002 to 3.3.2005. Relevant instructions issued by the G.I Dept. of Per. & Trg. O.M.No. 13026/3/2010-Estt (Leave) dated 22.06.2010 read as under:
(4) Guidelines for Regularization of Unauthorized Absence.- This department has been receiving various references from Ministries/Departments regarding regularization of unauthorized absence for long periods. The reference are made basically because the Ministries/Departments do not follow the prescribed procedure for was dealing with such unauthorized absence. Guidelines/instructions exist for handling such situations.
2. As per Rule 25 of the CCS (Leave) Rules 1972.
(1). Unless the authority competent to grant leave extends the leave, a Government servant who remains absent after the end of leave is entitled to no leave salary for the period of such absence and that period shall be debited against his leave account as though it were half pay leave, to the extent such leave i s due, the period in excess of such leave due being treated as extraordinary leave.
(2) Willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Government of India decisions also exists that a Government Servant who remains absent without any authority should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32(2) (a) of the CCS (Leave) Rules, 1972.
3. It is once again stressed that a Govt. servant who remains absent without any authority shout d be proceeded against immediately. All Ministries Departments are requested to ensure that in all cases of unauthorized absence by a Government Servant, he should be informed of the consequences of such absence and be directed to rejoin duty immediately/ within a specified date, say within three days, failing which he would be liable: for disciplinary action under CCS(CCA) Rules 1965. If the Government Servant does not join duty by the stipulated date the Disciplinary Authority should initiate disciplinary action against him and the disciplinary case should be conducted and concluded as quickly as possible.
4. It is only due to apathy of the Disciplinary Authorities that the situation arises where long pending unauthorized absence leads to delay in other service matters of Government Servants, including promotions. To avoid such situations all Ministries/ Departments should advise Disciplinary Authorities to ensure that prompt action is taken against Government Servants who absent themselves with out permission and that Charge-Sheets are issued without delay.
5. The consequences and procedure to be followed in respect of an officer who is absent from duty without any authority has been brought out under FR 17(1 ) and 17-A. As per FR 17-A(iii) without prejudice to the provisions of Rule 27 of the Central Civil Services (Pension) Rules. 1972, remaining absent without any authority or deserting the post, shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided by the competent authority for the purpose of leave travel concession, quasi-permanency and eligibility for appearing in department examinations, for which a minimum period of continuous service is required.
6. Comptroller a1 td Auditor General have issued orders that the period of absence not covered by grant of leave shall have to be treated as "dies non" for all purposes, viz., increment, leave and pension. Such absence without leave where it stands singly and not in continuation of any authorized leave of absence will constitute an interruption of service for the purpose of pension and unless the pension sanctioning authority exercises its powers under Article 421, Civil Service Regulations [now Rule 27 of the CCS (pension) Rules] to treat the period as leave without allowance, the entire past service will stand forfeited.
7. It may be noted that regularization of unauthorized absence for pension purpose is to be considered under the CCS (Pension) Rules. Only in cases where the disciplinary authority is satisfied that the grounds adduced for unauthorized absence are justified, the leave of the kind applied for and due and admissible may be granted to him under the CCS (Leave) Rules.
5. In view of the above, when challenge to the orders passed by the disciplinary authority and the appellate authority imposing the penalty of reduction to one lower stage in the time scale of pay for a period of one year upon the applicant with further direction that she will not earn increment of pay during the period and after expiry of the period the reduction will not have the effect of postponing the future increment of her pay and rejecting her appeal is rejected, the respondents are directed to treat the period of service of the applicant from 6th July 98 to 30.11.98 as spent on leave. The period from 1.12.1998 to 28.05.2002 is correctly treated as dies-non and the order passed by the disciplinary authority in this regard is justified and not interfered. However, the period from 29.05.2002 to 3.03.2005 was not covered by the charge sheet, thus, the respondents are directed to take a fresh decision regarding treatment of said period after giving show cause notice to applicant.
The OA stands disposed of. No costs.
[ ( V.N.Gaur ) (A.K.Bhardwaj) Member (A) Member (J) sk