Central Administrative Tribunal - Lucknow
Ambika Prasad Tiwari vs Union Of India on 5 December, 2023
CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00464/2010
Order Reserved On: 29.11.2023
Order Pronounced On: 05 .12.2023
Hon'bleMr.Justice Anil Kumar Ojha, Member-Judicial
Hon'bleMr.Pankaj Kumar, Member-Administrative
Ambika Prasad Tiwari, aged about 48 years,
Son of Shri Baldev Prasad Tiwari,
Resident of Village Pipari Sain Nathpur,
Post Keshevpur Dhanjai,
District Sultanpur.
.....Applicant
By Advocate : Shri Raj Kumar Dwivedi
Versus
1. General Manager (C & A) SKN,
Mahanagar Telephone Nigam Limited,
LSC, AD - Block, Shalimar Bagh, Delhi.
2. Dy. General Manager (C & A) SKN,
Mahanagar Telephone Nigam Limited,
LSC, AD - Block, Shalimar Bagh, Delhi.
3. AGM (Comml) SKN,
Mahanagar Telephone Nigam Limited,
LSC, AD - Block, Shalimar Bagh, Delhi.
....Respondents
By Advocate: Shri Gyanendra Singh Sikarwar
ORDER
PerHon'bleMr.Pankaj Kumar, Member-A This original application challenges the penalty of removal from service for unauthorized absence imposed by the respondents on the Page 1 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I applicant and the subsequent rejection of the applicant's appeal. Following reliefs are sought:
(i) to quash/set aside the impugned order no. AGM(C)SKN/DISC/APT/MRZ/MZ-25051/2005/60 dated 11.01.2007
whereby the respondents remove the petitioner from service on the ground of unauthorized absence from duty and order dated 09.06.2010 whereby respondents rejected the appeal on ground of limitation.
(ii) to issue order or direction commanding the respondents to permit the applicant to perform his work and duties on his post and pay all the incidental and consequential benefits as per rules.
(iii) issue any other order or direction, as the Hon'ble Court may deem fit and proper.
(iv) award the cost of the original application to the applicant. 2.1 The facts of the case are that the applicant, appointed by the respondents as regular labour on 31.03.1994, went missing from duty without leave from 15.07.2005. Disciplinary proceedings were initiated and enquiry conducted ex parte. The enquiry report submitted on 29.04.2006 found the charge established and proved. The enquiry report was sent to applicant's address, but came back undelivered. The respondents removed the applicant from service vide order dated 11.01.2007.
2.2 The applicant submitted an appeal to the respondents. It was rejected by the respondents vide order dated 09.06.2010. 3.1 It is the contention of the applicant that his conduct was found excellent and very good and that he was regarded as 'very punctual' and 'fully devoted to duty' (Annexure 4 to the OA). While he was on duty, he became ill suffering from mental disorder and thus was missing from duty and could not inform either the respondents or his own family. 3.2 The applicant claims that he was traced out in Kolkata by the office bearers of a non government organization (NGO) called the 'Sanatan Brahman Samaj Sewa', Haritanganj, Faizabad and brought to his residence in Sultanpur. Vide letter dated 25.10.2006, the coordinator Page 2 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I of the NGO communicated these facts to the SDE, Record MTSNL, Shalimar, Delhi (Annexure 6 to the OA).
3.3 Having been brought home, the applicant was under treatment till 24.10.2009. While the applicant was under treatment, his son wrote a letter dated 31.01.2007 to SDI (Record), MTNL, Shalimar, New Delhi informing about the applicant's illness (Annexure 8 to the OA). 3.4 A fitness certificate was issued by the doctor treating him (Annexure 7 to the OA). The applicant submitted his joining report dated 12.11.2009 (Annexure 9 to the OA) which was not accepted by the respondents. Having come to know of the punishment imposed on him, the applicant filed an appeal dated 17.02.2009 which was rejected by the respondents.
4.1 The respondents, on the other hand, contend thatthe applicant was charge sheeted under rule 25 of the MTNL (CDA) Rules, 1998 (the Rules, hereinafter) for having absented himself from duty unauthorisedly. The memorandum of charge was sent by registered post to his local address in Delhi as well as his permanent address in Sultanpur, but it was received back undelivered.
4.2 The enquiry was conducted and several summons were issued by the enquiry officer to the applicant, but these were also received back undelivered. The enquiry was conducted ex parte and found the charges established and proved in the enquiry report dated 29.04.2006. The enquiry report was sent to the applicant by post, but it came back undelivered. A last opportunity was given by AGM(C) SKN through public notice in three leading newspapers, but the applicant did not respond. Finally, the disciplinary authority imposed the penalty of removal from service vide order dated 11.01.2007. It is stated that no communication was received from the applicant or any of his family members before issuance of the order dated 11.01.2007. It is further stated that the Page 3 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I alleged representation from 'Sanatan Brahman Samaj Sewa' could not, in any case, be a legitimate consideration for the respondents to take a valid decision in the matter.
4.3 The applicant submitted his appeal dated 04.03.2010. As per rule 32 of the Rules, the appeal is required to be preferred within one month from the date of communication of order appealed against. Hence the appellate authority found the appeal time barred and rejected it vide order dated 09.06.2010.
4.4 The relief claimed by the applicant in this OA is legally untenable and is in ignorance of the settled principles of service jurisprudence reaffirmed by this Tribunal and the Apex Court, inert alia, in State of Punjab Vs Dr P L Singala 2008 (8) SCC 460 wherein following observation was made:
"11. Unauthorised absence (or overstaying leave), is an act of indiscipline. Wherever there is an unauthorised absence by an employee, two courses are open to employer. The first is to condone the unauthorized absence by accepting the explanation and sanctioning leave for the period of the unauthorized absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct."
4.5 The respondents assert that the impugned orders dated 11.01.2007 and 09.06.2010 (Annexure 1 and 1A to the OA) are wholly just, proper and in accordance with law and as such do not deserve interference by this Tribunal.
5. We have heard the learned counsels of both the parties. 6.1 The scope of judicial review in disciplinary cases has been circumscribed in various judgments of the Apex Court summarized in the Union of India vs Subrata Nath 2022 SCC Online SC 1617in the following terms:
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have Page 4 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three- Judge Bench of this Court in B.C. Chaturvedi (supra):
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, 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. ......
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline.They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If thepunishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below :
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of Page 5 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union of India v. G. Ganayutham, Bank of India v. Degala Suryanarayana and High Court of Judicature at Bombay v. Shashikant S. Patil)."
18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu12, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;Page 6 of 10
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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex. Constable Ram Karan 14, a two Judge Bench of this Court made the following pertinent observations:
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
....
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate Page 7 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
(emphasis supplied) 6.2 The fact that the applicant was unauthorisedly absent from duty is not disputed. There is no dispute in the validity of the process of the enquiry conducted and its findings either. It is after the submission of the enquiry report on 29.04.2006 that a letter from 'Sanatan Brahman Samaj Sewa' was written to the respondents on 25.10.2006. Available at Annexure 6 to the OA, this letter states that the applicant was mentally disturbed and was brought to his home from Kolkata by office bearers of 'Sanatan Brahman Samaj Sewa' after the son of the applicant informed them and requested that respondents to take necessary action for accepting the applicant. It is the respondents' action of not giving considering and verifying this information, and instead going ahead to impose the penalty, that we find inexplicable. Mental disturbance is required to be viewed like an illness. The information that the applicant was mentally disturbed required consideration and further examination. The disciplinary authority could have referred the case back to the enquiry officer for further enquiry on this aspect, but this was not done. The information on the applicant's mentally disturbed condition was also ignored by the appellate authority who disposed of the appeal as time barred without bothering to consider this aspect. It appears that the respondents were in a hurry to conclude the disciplinary proceedings and gave short shrift to the information brought to their notice by 'Sanatan Brahman Samaj Sewa' organization. As we consider the case 16 years after the disciplinary authority imposed the punishment, we notice that the applicant has not helped his own case either as thrice, on Page 8 of 10 CAT, Lucknow OA 332/000464 of2010 Ambika Prasad Tiwari Vs. U.O.I 09.12.2013, 15.07.2014 and 27.10.2016, this OA or application for its recall/restoration was dismissed for non prosecution. 6.3 Mental health issues are covered extensively in the judgment of Hon'ble Supreme Court in Ravindra Kumar Dhaliwal & Anr vs Union of India & ors. in Civil Appeal No. 6924 of 2021. With a view to sensitize the respondents, relevant extracts are reproduced below:
"55. International conventions like the Convention on Rights of Persons with Disabilities (CRPD) recognise mental health disorders as psychosocial disabilities. Psychosocial disability is sometimes characterised as an "invisible disability" because it is not always obvious, unlike other disabilities that are observable. Employees often do not disclose their mental health disorders, which leads to the invisibilization of psychosocial disabilities. The World Health Organisation and the World Psychiatric Association identify stigma as a major cause of discrimination against persons with mental health disorders. Many people with mental health disorders are willing and able to work. However, socio-structural barriers impede their participation in the workforce. People diagnosed with mental health disorders are less likely to be employed or are relegated to low-paying jobs that are not commensurate with their qualifications and interests. Exclusion from the workforce not only creates conditions of material deprivation, but it also impacts self-confidence, and results in isolation and marginalization which exacerbates mental distress. To escape stigma and discrimination, persons with mental health issues painstakingly attempt to hide their illnesses from co-workers and managers. Disclosure of mental health status carries with it the possibility of being demoted, laid off, or being harassed by co-workers. Resultantly, persons with mental health disorders deprive themselves of workplace assistance and effective treatments that can improve their mental health.
56. The stigmatization of mental health disorders is rooted in the characterization of individuals with mental illness as "violent and dangerous, dependent and incompetent, and irresponsible." Such characterization not only influences how persons with mental health disorders are perceived by others but also influences their self-worth. Mental health disorders are often attributed to an internal cause, for which the person is held responsible. This aggravates the stigma and prejudice. Even if a person with a mental health disorder learns to cope with it or goes into remission, past episodes and possibilities of future episodes put them at a disadvantage in securing and sustaining employment.
57. Thus, while the stigma and discrimination against persons with mental health disorders are rampant in society, as the highest constitutional court of the country, it falls upon us to ensure that societal discrimination does not translate into legal discrimination. International conventions provide a framework through which States can shape their laws and policies upholding the rights of persons with mental disabilities in tandem with internationally recognised standards.Page 9 of 10
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58. CRPD is an international human rights treaty of the United Nations which is intended to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities. It also aims to promote respect for their inherent dignity. It is a holistic treaty that combines civil and political rights provided by anti-discrimination legislation along with an array of social, cultural, and economic measures to fulfil the guarantee of equality. India is a signatory to CRPD and has ratified it on 1 October 2007."
(emphasis supplied) The position described above should sensitize the disciplinary authorities to any information or report on mental illness of their employee and the appropriate method to deal with such information. Such information should not be ignored.
6.4 In view of the facts and circumstances mentioned above, the case at hand, in our view, falls in the category of those exceptional and rare cases where the respondents have failed to take cognizance of and examine the information on mental health of the applicant in the course of disciplinary proceedings and have proceeded to impose a penalty on the applicant that has shocked our conscience.
7. The impugned order dated 11.01.2007 of the disciplinary authority and the order dated 09.06.2010 of the appellate authority are quashed and set aside. The respondents shall conduct further enquiry into the mental health of the applicant and take such further action as considered appropriate under the rules. This OA is disposed of with aforementioned directions. Pending MAs, if any, are also disposed of. The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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