Central Administrative Tribunal - Ahmedabad
A.M. Bhardwaj, Ias vs Union Of India (Uoi) And Ors. on 19 July, 2002
Equivalent citations: 2003(3)SLJ389(CAT)
JUDGMENT G.C. Srivastava, Member (A)
1. The applicant who is 1969 batch IAS Officer of Gujarat entire and working under the respondents has challenged inter alia the order dated 31.5.2001 of the President i.e. the Minister in charge of the Department of Personnel and Training imposing major penalty of reduction in the pay scale by two stages for a period of one year with cumulative effect with the stipulation that he will not earn increment during the period of reduction and has prayed for the following reliefs:
"(a) The applicant prays that the Hon'ble Tribunal be pleased to allow this Original Application and be pleased to quash and set aside the impugned order dated 31.5.2001 at Annexure A/9 and the advice of the UPSC dated 29.3.2001 at Annexure A/10.
(b) The Hon'ble Tribunal be pleased to permanently restrain the Respondents from enforcing and/or implementing the impugned orders as referred to sub-para (a) and be pleased to direct the respondents to grant the increments which have been withheld under the impugned order and pay all consequential benefits and restore the service conditions of the applicant as if the impugned order was never passed, alternatively, be pleased to order that the impugned punishment would not be treated as a disqualification for any promotion or shall not be used against the applicant to prejudicially affect any other service condition of the applicant including retiral benefits.
(c) Any other relief considered just and proper in the facts and circumstances of the case."
2. The brief facts of the case as narrated by the applicant are that while he was occupying the post of Joint Secretary in the Ministry of Civil Aviation, Govt. of India, he was to accompany the Minister in the inaugural flight of Air India scheduled to fly to Johannesburg in South Africa on 2nd October 1993. As a part of inaugural flight from India to South Africa he was also to visit Namibia on official tour for three days. As the Air India had offered the promotional fares for the first two months, his wife had also planned to join him in this trip along with other friends of the applicant. As the entire trip was pre-planned the tickets of his wife as well as other friends were already purchased and they were to leave on 5th October 1993. However, due to the Latur earthquake the official inaugural trip to Johannesburg was cancelled and his official visit of Johannesburg and thereafter to Namibia also stood cancelled. The applicant had therefore, decided to continue with his trip to Namibia in his private capacity along with his wife and friends and accordingly, sought permission of the Ministry of Civil Aviation to visit Namibia in his private capacity on 5.10.93 and the Hon'ble Minister had orally given the permission and assured him that he would be given formal communication in this regard. However, he did not receive any formal communication till the evening of 5.10.93 and being in a peculiar predicament on 5.10.93 he decided to take casual leave from 6th October to 8th October 93 during which period he expected to get the formal communication as assured by the Minister. His casual leave was sanctioned by the competent authority. However, when he went to the Airport to see off his wife and other friends on 5.10.93 in the evening his wife had strongly insisted that he should also travel along with them as she was suffering from heart ailment. His wife had become quite emotional and a refusal on his part to accompany her on that day would have resulted in the entire trip being cancelled resulting in the loss of quite a bit of money already spent on tickets, etc. Under the circumstances, the applicant telephoned the Additional Personnel Secretary to the Minister and informed him that under those compelling circumstances, he would have to accompany his wife to Namibia. After reaching Namibia he made an application on 8th October for leave for a period of 38 days w.e.f. 6.10.93 also seeking approval of the authority for a visit to Namibia. The authorities however, did not respond to his application nor did they pass any order refusing to grant the leave as is required under the Rule 3 of the All India Services (Leave) Rules [AIS (Leave) Rules] on 27th October, 93 he received a telegram from the administration asking him to clarify the circumstances in which he could not seek prior approval for his visit. Immediately after returning from Namibia on 30.11.93 he submitted his representation/ clarification pointing out inter alia that he had personally requested the Minister (CA and T) to permit him to leave for Namibia in the same evening on a personal visit and the latter had assured him to do the needful (Annexure A-l). Rejoined his duties on 15.11.93 but to his utter shock a memo dated 23.2.94 was issued under Rule 10 of the All India Services (Discipline and Appeal) Rules 1969 (AIS (D and A) Rules) alleging that his absence from duty from 6.10.93 to 14.11.93 and his visit abroad without prior approval of the competent authority were unauthorised and therefore, he had failed to maintain absolute devotion to duty and had displayed conduct absolutely unbecoming of the Indian Administrative Services and violating the provisions of Rule 3( 1) of the All India Services (AIS) (Conduct) Rules 1968 (Annexure A-2). He represented against the said Memo vide his letter dated 28.3.94 (Annexure A-3). His superior officer made a note on 30.3.94 on his representation that as he had tendered his apology the Disciplinary Authority may take a lenient view. To his further shock and surprise, he was served with another Memo dated 27.2.98 for holding inquiry against him under Rule 8 of the AIS (D and A) Rules on the same allegations given earlier ((Annexure A-4). Thereafter he received another Memo dated 27.2.1998 by which the earlier memo dated 23.2.94 was withdrawn without prejudice to the disciplinary proceedings under Rule 8 thereof (Annexure A-5). He submitted his written statement of defence on 27.4.98 (Annexure A-6). Thereafter Mr. A.K. Garde who was appointed as Enquiry Officer conducted the inquiry and submitted his report dated 29.6.99 to the Disciplinary Authority. A copy of the report was given to him along with communication dated 28.7.99 (Annexure A-7). He submitted his representation against the said report vide his letter dated 5.9.99 (Annexure A-8). Finally the impugned order dated 31.5.2001 along with the advice of the UPSC dated 29.3.2001 (Annexure A-9) vide his communication from Deputy Secretary to the Govt. of Gujarat dated 28.6.2001 (Annexure A-8, A-9 and A-l 1) were issued to him. Aggrieved by this, he has filed this O.A.
3. The respondents have contested the O.A. and have filed detailed reply stating inter alia that the inquiry has been conducted as per rules and necessary penalty order has been imposed by the competent authority after considering the advice of the UPSC and after proper application of mind.
4. We have heard Dr. Mukul Sinha and Mr. B.N. Doctor, the learned Counsel for the applicant and the respondents respectively and have carefully scrutinised the pleadings and the documents placed on record. With the consent of both the parties, we are disposing of the O.A. at the admission stage. We have also examined the judgments relied upon by the learned Counsel for the applicant.
5. The main contentions advanced by Dr. Mukul Sinha for the applicant are : (i) the impugned order dated 31.5.2001 (Annexure A-9) and the advice of the UPSC (Annexure A-10) are illegal, unauthorised and outside the Rule 8 of the AIS (D and A) Rules 1969 and therefore, wholly without the jurisdiction or the authority and therefore, void. (ii) The Union Public Service Commission has no power under the Article 320(3)(C) to advise and constrain the Disciplinary Authority to convert the proceedings under Rule 10 of the AIS (D and A) Rules into those under Rule 8 thereof and the Disciplinary Authority could not have issued the fresh Memorandum dated 24.2.98 under Rule 8. (iii) The acts/omissions and the charges levelled against the applicant have remained exactly the same in both the memos and therefore, there were neither any additional charges nor graver charges in the new Memo under Rule 8 and therefore, there is no cogent reason available to the respondents to convert the said proceedings from Rule 10 to Rule 8. This becomes evident particularly in view of the fact that the Secretary (Civil Aviation) who was the superior officer of the applicant at that point of time had subsequently recommended a lenient view to be taken while imposing the minor penalty. Therefore, the decision to convert the proceedings to Rule 8 from Rule 10 is without any rational basis, arbitrary and without any application of mind and therefore, in violation of Article 14 of the Constitution of India, (iv) The charges/statement of imputation in the Memo do not amount to any misconduct at all to attract the provision of Rule (3) (1) of the AIS (Conduct) Rule 1968. It has been established by him during the course of inquiry that the Hon'ble Minister of Civil Aviation had given his own consent on 5.10.93 permitting him to proceed on his private tour to Namibia and this is also confirmed by the letter of Mr. V.J. Menon, Under Secretary, Deptt. of CA and T vide letter dated 17.1.96 to DOPT. At the most his not obtaining of formal communication for leaving the country could have been a minor irregularity and therefore, the charge cannot be termed as a misconduct under the disciplinary rules, (v) There is no provision that receipt of the written permission of the grant of leave is mandatory in all circumstances before proceeding on leave. On the contrary it is incumbent on the authorities to refuse the leave application in case the authorities decide not to grant the same. In the present case, he had admittedly submitted his application for grant of leave from 6th October 93 but the authorities did not pass any orders refusing to grant the leave as applied for. If the authorities decided not to grant the leave they should have passed an appropriate order and direct the applicant to join duty. However, no such course of action was admittedly followed by the authorities and they only sought the clarification from the applicant. He returned to India and resumed his duties and the authorities permitted him to do so without any murmer and therefore, by their own conduct they have waived the necessity of obtaining the formal written permission accordingly, having estopped from charging the applicant for misconduct. (viii) The finding of the Inquiry Officer is perverse who has deliberately overlooked/ignored the evidence in favour of the applicant and has relied on his own conjectures and surmises using the same against him in absence of any actual evidence. (ix) The Disciplinary Authority has mechanically adopted the advice of the UPSC without application of mind on the contentions raised by the applicant and the facts of the case. It is a settled position of law that the Disciplinary Authority cannot simply accept the advice of the UPSC since the same is not binding. Therefore, the impugned order suffers from the vice of non-application of mind also. (x) The punishment awarded is disproportionately harsh inasmuch as for a mere irregularity of not obtaining a formal written approval of grant of leave and concomitant permission to leave the country he has been visited with a major penalty jeopardising his future promotional prospects. He had expressed his sincere regrets for the same and the Secretary concerned had accepted his explanation and recommended a lenient view and therefore, the punishment awarded finally is not commensurate with the charge. (xi) The disciplinary proceedings have stretched to over seven years and the applicant has been severely punished in terms of mental torture, harassment and loss of empanelment as Additional Secretary to the Govt. of India in the year 1997. He has also lost his opportunity to be appointed as a Chairman of the Airport Authority of India in 1977 for the same reason. In view of this, the penalty is not only jeopardising the carrier of the applicant but also causing cumulative pecuniary loss amounting to vicimisation.
6. The main contention raised by Mr. B.N. Doctor for the respondents is that that initially minor penalty proceedings under Rule 10 of the AIS (D and A) Rules, 1969 were started against the applicant with the approval of the competent Disciplinary Authority but after examination of the written statement filed by the applicant in the Deptt. of Personnel and Training (Respondent No. 1) it was found that the defence of the applicant was not acceptable and the case was referred to UPSC i.e. respondent No. 2 with a provisional conclusion that in view of proven misconduct imposition of a minor penalty was warranted. However, the UPSC found the charges serious and grave against a senior IAS officer and advised major penalty proceedings against him. This was examined by the deptt. of Personnel and Training and independent opinion of the Committee of Secretaries was also obtained which recommended acceptance of the advice of the UPSC. Accordingly, the competent authority decided to issue charge sheet for major penalty proceedings under Rule 8. The charges against the officer were enquired into by the Inquiry Officer (IO) and the report of the IO was supplied to the applicant. After examining the findings of the IO the reply of the applicant and all other material on record, the findings of the IO were accepted by the Disciplinary Authority who tentatively decided to impose major penalty on the applicant. Thereafter all the relevant records were referred to UPSC i.e. Respondent No. 2 for advice vide Department of Personnel and Training letter dated 7.9.2000. The UPSC tendered its advice and in the light of facts and circumstances of the case, conclusions/observations of the Inquiry Officer/UPSC and after taking into consideration all relevant aspects of the case including records of departmental proceedings it was concluded by the competent authority that the ends of justice will be met if the pay of the applicant was reduced by two stages for a period of one year with cumulative effect with the stipulation that the applicant would not earn increment for the period of reduction as contained in the order dated 31.5.2001. It is denied by the respondents that the impugned order of penalty and advice of UPSC are beyond the scope of the Rules 8 and 10 of the said Rules and without jurisdiction or authority. The UPSC has tendered their advice in accordance with Article 320(3)(c) of the Constitution read with Regulation 5( 1 )(a) of the UPSC (Exemption from Consultation) Regulations, 1958. It is also strongly denied by the respondents that the UPSC had constrained the Disciplinary Authority to convert the proceedings under Rule 10 of the AIS (D and A) Rules in to the proceedings under Rule 8 thereof, Mr. Doctor has contended that the respondents have given due weightage to the advice of the UPSC and the same cannot be construed as the UPSC compelling the respondents to adopt a particular course in the said proceedings. The advice of the UPSC was independently examined by the department of Personnel and Training and after obtaining independent opinion of the Committee of Secretaries a decision was taken to initiate major penalty proceedings with the approval of the competent authority. The Disciplinary Authority did not agree with the recommendation of the Secretary, Civil Aviation for taking lenient view of the evidence on record and the gravity of charges. Thus, the action on the part of the Disciplinary Authority is with independent application of mind. In view of the above, Mr. Doctor has argued that the order of penalty has been passed by the competent authority after following the due process of law and after due and proper application of mind without any pressure or dictation from the UPSC i.e. Respondent No. 2.
7. Before we go into the merits of the rival contentions of both the parties, we would like to state by way of preamble that the role of Court/Tribunal in disciplinary matters is extremely limited and as per the settled position of law the Court/Tribunal can interfere ordinarily in matters where it is a case of no evidence or where the disciplinary action has been taken in violation of statutory rules/regulations or where the penalty is disproportionate to the charges or where the order is arbitrary, perverse or without application of mind.
8. In the light of the above preamble, we would now examine whether the present case falls in any of the categories as mentioned above.
9. We have considered the rival contentions. The main contention of the applicant is that the decision of the Disciplinary Authority for converting the minor penalty charge-sheet into major penalty charge sheet is not an independent decision but is dictated by the advice of the UPSC i.e. Respondent No. 2 and therefore, this action itself reflects non-application of mind and therefore deserves to be quashed and set aside. Dr. Sinha for the applicant has drawn our attention to the fact that the Secretary, Civil Aviation has himself recommended a lenient view in the matter but later on the minor penalty charge-sheet was converted into major penalty charge-sheet only after the advice of the UPSC was received. Mr. Doctor has strongly opposed this contention and has argued that the UPSC is well within its rights as per the provisions contained in 320(3)(c) of the Constitution of India to tender advice on such matters. And merely because Secretary, Civil Aviation had earlier recommended a lenient view in the matter does not mean that the competent Disciplinary Authority would mechanically accept the advice and accordingly, the competent authority referred the matter of the UPSC for advice. After advice of the UPSC was received, the same was got examined in the Ministry of Personnel and Training and the opinion of the Independent Committee of Secretaries was also obtained and it is only after examining all these factors as well as the recommendation of the Committee of Secretaries that a decision was taken by the competent authority to start major penalty proceedings. Dr. Mukul Sinha, the learned Counsel for the applicant has also argued that in a similar manner the competent Disciplinary Authority has passed the impugned order under dictation from the UPSC i.e. Respondent No. 2. and therefore assails the impugned order being under dictation/pressure and without application of mind. In support of this Dr. Sinha has relied on the judgment of the Hon'ble Supreme Court in the case of Nagraj Shiv Rao Karjagi v. Syndicate Bank, Head Office Manipal and Another, ATR 1991 (2) SC 294.
10. We have examined the judgment in the aforesaid case and find that the question before the Hon'ble Supreme Court in the above case was in regard to quantum of punishment imposed by the competent authority in consultation with and acceptance of the advice of the Central Vigilance Commission made mandatory by Government directive and the Hon'ble Supreme Court had observed as follows:
"(2) The Government may regulate the Banking institutions within the power located under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Section 8 is the only provision which empowers the Government to issue directions to corresponding new Bank in regard to matters of policy involving public interest. The corresponding new Bank includes the Syndicate Bank. But there cannot any uniform policy with regard to different disciplinary matters and much less there could be any policy in awarding punishment to the delinquent officers in different cases. The punishment to be imposed whether minor or major depends upon the nature of every case and the gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. No third party like the Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their power and what punishment they should impose on the delinquent officer. The impugned directive of the Ministry of Finance, is therefore, wholly without jurisdiction, and plainly contrary to the statutory Regulations governing disciplinary matters."
11. It would therefore be seen that while in the aforesaid case the directive issued by the Ministry of Finance to the Syndicate Bank was held to be without jurisdiction and therefore, the impugned orders of the Disciplinary Authority and the Appellate Authority were quashed and set aside. In the instant case no such directive was issued but the impugned action has been taken by the competent authority after consulting and obtaining advise of the UPSC under the constitutional provisions. The respondents have very clearly stated that the said advice of the UPSC was examined in the Ministry of Personnel and Training and independent opinion of Committee of Secretaries was also obtained. The Committee of Secretaries has recommended acceptance of the advice of the UPSC and the Ministry of Personnel and Training was also of the opinion and it is only after all this that the Disciplinary Authority had decided to initiate action under Rule 8 instead of Rule 10 and finally imposed the penalty under Rule 8. Under the circumstances, we do not find substance in the submission made by Dr. Mukul Sinha that the action of the respondents in initiating disciplinary proceedings under Rule 8 instead of Rule 10 as also imposing the penalty was at the dictation of the UPSC. The UPSC tenders advice to the competent authority under Article 320(3)(C) of the Constitution of India and it has been held that the object of Clause 3(C) is to give an assurance to the services that an independent body has considered the action proposed to be taken against a particular person and also to afford the Government an unbiased advice on matters affecting morale of the public services AIR 1957 SC 912 (916). It has also been held that though the Union Public Service Commission has to be consulted in all disciplinary matters it is not an Appellate Authority over the Enquiry Officer. (AIR 1962 SC 1130, 1132, 1133). The function of the Commission is neither to investigate nor to act as Appellate Authority over the enquiring officer. The commission is only required to advise the Central Government on the basis of existing material (1990) 14 ATC 406 (CAT) (All). In the instant case the advise of the UPSC as shown earlier has been examined in the Ministry and also by the independent Committee of Secretaries and then the Disciplinary Authority has considered the advice in the Jight of the recommendation of the independent committee of Secretaries and also the findings of the Inquiry Officer, the statement of defence furnished by the applicant and has come to a conclusion that action is to be taken under Rule 8 of the AIS (D and A) Rules and consequently the penalty has been imposed. Accordingly, we are not in a position to accept the contention of Dr. Sinha for the applicant that the conversion of the minor penalty charge sheet into major penalty chargesheet and finally imposing the major penalty by the competent authority under Rule 8 is on the dictation of UPSC and we are of the considered view that the action has been taken after considering the facts and circumstances of the case independently and after proper application of mind.
12. As regards the recommendation of the Secretary, Civil Aviation regarding lenient view to be taken in the matter in view of the explanation of the applicant we would like to observe that it is for the Disciplinary Authority to decide what action is to be taken and what view is to be taken in the matter in such cases and by no stretch of logic the recommendation of the secretary can be construed to be the view of the Disciplinary Authority nor can it be binding on him. In the instant case the Disciplinary Authority has referred the matter to the UPSC for advise and after receipt of the advise the same has been given weightage which is due and cannot be constituted as the UPSC compelling the respondents to take a particular course of action in the disciplinary proceedings. The objection of the applicant regarding conversion of minor penalty proceedings to major penalty proceedings as stated in his representation against the Inquiry Officer's report has been duly considered by the respondents before imposing the penalty on the applicant and necessary order passed. We do not therefore find any ground for interfering in the above matter as has been held in the case of B.C. Chaturvedi v. Union of India and Ors., AIR 1996 SC 484, that power of judicial review by the Court is meant to ensure that the individual receives fair treatment. When an inquiry is conducted on the charges of misconduct by a public servant, the Court or the Tribunal is to determine whether the enquiry was held by a competent officer and whether rules of natural justice were complied with. However, technical rules of the Evidence Act or proof of fact or evidence etc., are not applicable. The Court or the Tribunal can interfere where the authority held the proceedings in a manner inconsistent with rules of natural justice or statutory provisions. However, adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court or the Tribunal. Further it has been held in the case of Govt. of Tamil Nadu and Anr. v. A Rajapandeian, 1995(1) SCC 216=1995(2) SLJ 216 (SC), that administrative Tribunal cannot sit as a Court of appeal over a decision based on the findings of the inquiry authority in disciplinary proceedings where there is some relevant material which the Disciplinary Authority has accepted and which material reasonably supports the conclusion reached by the Disciplinary Authority.
13. As regards the contention that the charges in the charge sheet do not constitute misconduct so as to attract the provisions of AIS (Conduct) Rules 1968 we would like to reproduce the charges in the statement of imputation of misconduct as under:
"Article--I Shri A.M. Bhardwaj vide his application dated 5.10.1993 had applied for three days casual leave from 6th to 8th October 93 to the competent authority viz. The Secretary (Civil Aviation) stating that he would not be able to attend office during those days owning to urgent personal work. On the 5th October, 93 itself Shri Bhardwaj proceeded abroad to Namibia without prior permission of the competent authority. Shri Bhardwaj has explained in his dated 16.11.93 that he had made all the arrangements for the trip of Namibia and his failure to proceed to Namibia would have caused heavy losses. This obviously shows that Shri Bhardwaj while applying for casual leave from 6.10.93 to 8.10.93 failed to disclose the true reasons for the casual leave, and he failed to infrom his senior officer about his intention to proceed abroad.
Article--II After reaching Namibia, Shri Bhardwaj sought earned leave for 38 days from 6th October 93, to the 12th November 93 vide Fax Message dated 8th October 93. Subsequently Shri Bhardwaj was asked to clarify the circumstances in which he could not seek the prior approval even though he had the time to seek it on 5.10.93 vide Ministry of Civil Aviation's letter/telegram No. A. 24012/ 5/91--Admn. dated 20.10.93 and 26.10.93 respectively, Shri Bhardwaj was also asked to clarify the purpose of his proceeding abroad and particularly to Namibia. In his explanation dated 16.11.1993, Shri Bhardwaj regretted his action of leaving for Namibia without prior permission. Our further enquiries. Shri Bhardwaj vide his note dated 28.3.1994 conceded that he had taken the rash decision of leaving for Namibia without prior permission due to emotional stress.
Article--III In response to this Ministry's telegram dated 26.10.93. Shri Bhardwaj vide his explanation note dated 16.11.93 has stated that his said visit was purely private. On further enquiries Shri Bhardwaj vide his note noted 19.10.95 has confirmed that he utilised the official passport for his said journey to Namibia. Thus, Shri Bhardwaj misused the official passport for his private visit to Namibia.
Article--IV After reaching Namibia, Shri Bhardwaj sought earned leave for 38 days from 6th October 93 to the 12th November 93 vide Fax Message dated 8th October 93. Subsequently, Shri Bhardwaj was asked to clarify the circumstances in which he could not seek it on Civil Aviation's letter/telegram No. A 24012/ 5/91-Admn. Dated 20.10.93 and 26.10.93 respectively. No cogent reasons have been given by Shri Bhardwaj for this lapse in his reply dated 16.11.93. Accordingly, the absence from duty during the period from 6.10.93 to 14.11.93 has not been regularised by the competent authority and as such has been treated as unauthorised.
By the aforesaid acts, Shri A.M. Bhardwaj, has contravened the provisions of Rule 3(1) of the All India Services (Conduct) Rules, 1968".
We now reproduce Rule3 (1) AIS Conduct Rules 1968:
"Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing which is unbecoming of a member of the service."
We have carefully perused the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Ors. v. Ram Singh, Ex. Constable, 1992(4) SCC 54=1992(3) SLJ 160 (SC) relied upon by the applicant in support of the above contention and word like to reproduce the extract relevant for the purpose of this case where misconduct has been defined by the Hon'ble Supreme Court:
"Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, wilful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
From the above, it would be seen that the scope of misconduct is to be construed with reference to subject matter and the context wherein this occurs. We find that in the instant case the facts and situation on the basis of which the charge-sheet was issued clearly point towards one fact that the charges for which the applicant has been charged and punished would in the present context certainly amount to what is called' a conduct which is blame worthy for the Government servant', Union of India and Ors. v. J. Mimed, AIR 1979 SC 1022=1979 SLJ 308 (SC), who in the instant case held such a senior and high ranking position in an acclaimed service of the Government. It is seen from the charge-sheet that the charges pertained to failure to disclose true reasons while applying for casual leave from 6.10.93 to 8.10.93, proceeding abroad without prior permission, misuse of official passport and unauthorised absence. It is difficult to conceive of a situation where such charges are not treated as misconduct. In our considered opinion therefore charges certainly constitute misconduct under Rule 3 of the AIS (Conduct) Rules and the contention about charges not being misconduct is held to be untenable.
14. As regards the contention about taking permission before sanction of leave or otherwise we would like to point out that leave is not a mater of right and unless it is sanctioned it cannot be presumed to have been sanctioned. Rule 3 of AIS (Leave) Rules 1955 provides as under:
3(1) "Leave cannot be claimed as a right and when the exigencies of public service, so demand, leave of any description may be refused or revoked by the Government."
In the instant case after reaching Namibia he applied for leave for 38 days but neither waited for its sanction nor inquired about the same and even when a clarification was sought from him, he did not furnish the same immediately and returned only after the expiry of the period of 38 days leave applied for. We are unable to find any justification in the submission made by the applicant that it was obligatory on the part of the respondents to have communicated the sanction and if they wanted not to sanction the leave they should have informed him accordingly. In our opinion it was incumbent on the part of the applicant to ascertain from the respondents whether leave applied for by him has been sanctioned or not. Merely applying for leave does not mean that the leave has been sanctioned and it is in the interest of the, applicant himself that he should have ascertained the position whether the leave has been sanctioned or not but he did not do so and only after availing the earned leave applied for by him he returned to India. In view of this, the contention about non-requirement of obtaining prior sanction of leave also fails and the contention of estoppel as argued by the applicant is treated as misconceived.
15. The other contention taken by the applicant is about punishment being harsh and in support thereof he has relied upon a few judgments. However, since the Hon'ble Supreme Court has already laid down the law in regard to proportionality of punishment to the charges in the case of B.C. Chaturvedi v. Union of India (supra) we would refer to that case only in the present context. According to the Hon'ble Supreme Court in the above case, the Court/Tribunal cannot interfere in the disciplinary proceedings unless the penalty imposed by the Disciplinary Authority shocks the conscience of the Court/Tribunal and in such a case it would appropriately mould the relief either directing the Disciplinary Authority/Appellate Authority to consider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases impose appropriate punishment with cogent reason in support thereof. It has been further held that the Court/Tribunal can interfere if the conclusions or finding are such as no reasonable person would have ever reached and in such a situation the Court/Tribunal may interfere with the conclusion or the finding and mould the relief so as to make it appropriate to the facts of each case. We have examined the present case in the light of the test laid down by the Hon'ble Supreme Court in the aforesaid case and do not find that the penalty imposed on the applicant is harsh or disproportionate to the charges. The penalty imposed on the applicant is reduction of the pay of the applicant by two stages for a period of one year with cumulative effect with the stipulation that he will not earn increment during the period of reduction. Considering the gravity of the charges involved and also keeping in view that the applicant was occupying such a senior and important position and belongs to a service which forms the nucleus of the entire Govt. administration we do not find that the conclusions or finding arrived at by the DA is such as no reasonable person could have ever reached or the punishment imposed on the applicant is such as would shock our conscience. Therefore, on this ground also we are unable to interfere in the above matter.
16. The only other ground taken by the applicant is regarding prolonged disciplinary proceedings. It is an admitted position that the applicant was issued charge-sheet under Rule 10 of the AIS (D and A) Rules, 1968 from minor penalty vide charge-sheet dated 23.2.94 which was later on withdrawn vide Memo dated 24.2.98 and he was issued another Memo dated 27.2.98 issuing charge-sheet under Rule 8 for major penalty. It is also not in dispute that the applicant did not approach this Tribunal prior to filing of this O.A. either challenging the conversion of the minor penalty charge-sheet into major penalty charge-sheet or challenging the delay in the disciplinary proceedings at any point of time and seeking direction to complete the disciplinary proceedings within a specified period. He has approached this Tribunal only in this O.A. after the penalty has been imposed. As such the charge-sheet under Rule-8 which was issued to him has merged with the penalty order of 31.5.2001. Therefore, the delay has to be considered only from the date of issue of the Rule 8 charge-sheet on the basis of which the penalty has been imposed. Admittedly the said charge-sheet was issued on 27.2.98 and he submitted his defence statement on 27.4.98 thereafter Inquiry Officer was appointed who conducted the inquiry and submitted his report on 29.6.1999 to the Disciplinary Authority. A copy of the report was given to him in July 99. He submitted his representation against the Inquiry Officer's report on 5.9.99 and finally the impugned order was passed on 31.5.2001 along with the advice of the UPSC dated 28.3.2001. Considering the various stages involved in the conclusion of the disciplinary proceedings and also that the UPSC was required to be consulted we do not consider that the time taken from the issue of the charge-sheet under Rule 8 upto the passing of the final order is unreasonable so as to cause prejudice to the applicant and to warrant quashing of the impugned order. Under the circumstances, the ground regarding delay in conclusion of the disciplinary proceedings also fails.
17. In the light of the foregoing discussions we are of the considered view that the instant case does not fall in any of the categories mentioned in the para-7 (supra) and the intervention of this Tribunal is not warranted. Accordingly, the O.A. is devoid of any merit and deserves to be rejected.
18. Accordingly, the O.A. is rejected with no order as to costs.
19. With the disposal of the O.A., M.A. 238/2002 also stands disposed of.