Central Administrative Tribunal - Chandigarh
Mrs. Jyoti Sharma vs Kendriya Vidyalaya Sangthan Through ... on 10 December, 2002
Equivalent citations: 2004(2)SLJ15(CAT)
ORDER
O.P. Garg, J. (Vice Chairman)
1. The applicant was appointed as a regular primary teacher in the Kendriya Vidyalaya Sangthan in September, 1983. When she was posted in Kendriya Vidyalaya No. 2 of Chandi Mandir, she proceeded on six days' Earned Leave w.e.f. 25.6.1996. She could not rejoin her duties and applied for the grant of three months' more leave. It is alleged that she further applied for extraordinary leave from 21.9.96 to 19.12.96. She is alleged to have sent a number of applications for extension of leave.
2. The respondent department treated the applicant as absent in an unauthorised manner w.e.f. 25.6.1996. By invoking the provisions of Article 81(d) of the Education Code, a notice to show cause was issued to the applicant under Clause (3) for provisional loss of lien on the post held by the applicant. The applicant submitted representation/reply to the notice. The Competent Authority, i.e. Assistant Commissioner, Kendriya Vidyalaya Sangthah, Chandigarh, taking into consideration the representation made by the applicant and coming to the conclusion that she could not satisfactorily justify her unauthorised absence w.e.f. 25.6.1996, ordered on 18.12.2000, Annexure A-1, that the applicant shall he deemed to have been removed from service of Kendriya Vidyalaya Sangthan w.e.f. 25.6.1996. Aggrieved the applicant preferred an appeal which has been dismissed by the Deputy Commissioner (Admn.) by order dated 16.7.2001, Annexure, A-2. It is in these circumstances that the applicant has invoked the jurisdiction of this Tribunal by filing this O.A. under Section 19 of Administrative Tribunals Act, 1983 claiming the relief that the Order of removal from service and the order dismissing her appeal, Annexures A-1 and A-2 be quashed and she be reinstated in service with all consequential benefits. The validity and legality of the provisions of Article 81(d) of the Education Code have further been challenged as being ultra vires of provisions of Articles 311, 14 and 16 of Constitution of India. Accordingly, a declaration to this effect has also been prayed.
3. The respondents have filed a detailed written statement. It is alleged that the applicant has been absenting herself in an unauthorised manner w.e.f. 25.6.1996 and in spite of a number of requests made to her to join her duties, she whiled away the time for no valid reasons. It is maintained that the order of removal dated 18.12.2000, Annexure A-1 has been passed after adopting the due procedure prescribed under Article 81(d). The assertion that the provisions of the said Article arc ultra vires of the Constitution of India has been refuted.
4. Heard Mr. G.S. Bal learned Counsel for the applicant as well as Mr. H.C. Arora, learned Counsel, appearing on behalf of respondents. On facts, there is not much dispute. It is an indubitable fact that the applicant has not attended the Vidyalaya during the period 25.6.1996 to 18.12.2000 on which date, she was removed from service. The applicant herself has admitted that she could not report for duty in the Vidyalaya due to her pressing family problems. Annexure A-3 is the application dated 16.9.96 whereby the applicant on account of family problems, applied for Earned Leave for the period 21.9.96 to 19.12.96. The leave prayed for was not sanctioned. In her another application/letter dated 27.2.2000, Annexure A-4, she has mentioned that her husband, Lt. Colonel D.M. Sharma was posted in Kargil area in operation "Vijay" upto December, 1999 and subsequently, he was admitted in hospital from 3.12.1999 to 7.12.1999; that after remaining on sick leave for some time, he was again hospitalised on 19.3.2000 and has been advised bed rest needing constant care. On the said ground, she prayed for extension of leave upto 30.6.2000. Again on 24-5.2000, Annexure A-7 she made a request for her transfer to Binnaguri, West Bengal as she was keen to join her husband in his peace station tenure and also carry on with her job. By letter dated 28.6.2000, Annexure A-9, she clearly informed the Respondents that she was not in a position to re-join her duty at Chandi Mahdir. She requested to extend her leave upto 30.9.2000. The leave applied for, was never sanctioned. The request of the applicant for transfer also did not find favour with the respondents. Consequently, after serving a notice as required in Clause (3) of Article 81(d) and taking into consideration the reply filed by the applicant, she was removed from service Mr. G.S. Bal, learned Counsel for the applicant could not point out any legal flaw or infirmity in adopting the procedure to remove the applicant from service in the light of the provisions made in Article 81(d).
5. The entire thrust of the submissions of the learned Counsel for the applicant was that the provisions of Article 81(d) are oppressive, arbitrary and unjustified and since they are ultra vires of the provisions of Articles 311, 14 and 16 of the Constitution, the said provision has to be struck down. It was also urged that the procedure prescribed in the CCS (CCA) Rules, 1965 for dealing with the teachers of the Kendriya Vidyalaya cannot be dispensed or done away with by an unreasonable draconion provision as contained in Article 81(d).
6. To begin with, let us examine the rationale behind the incorporation of the provisions of Article 81(d). The said provision has been brought into existence to deal with the cases of voluntary abandonment of service. In the letter dated 4.9.2000 issued by the Kendriya Vidyalaya Sangthan to the Assistant Commissioners of all Regional Offices on the subject of notification of newly inserted Article 81(d) in the Education Code, the background in which the said provision came to be inserted, has been highlighted. It was noticed that for quite some time, the teachers/employees of the Sangthan have been absenting themselves in an unauthorised manner which was one of the primary causes of indiscipline and deteriorating academic standards in the Vidyalayas. The Board of Governors of Kendriya Vidyalaya Sangthan, realised the severity of the problem and felt that normal procedures/rules as available under the CCS(CCA)) Rules, 1965 were cumbersome, dilatory and not sufficient to address to the magnitude of the surging problem of unauthorised absence. It was to tackle this problem that in exercise of the powers conferred by Regulation 22 of the Memorandum and Rules of the Kendriya Vidyalaya Sangthan, the Board of Governors framed and inserted Article 81(d) in the Education Code. There is no dispute about the fact that the Board of Governors had the power and the authority to introduce/insert a new provision in the nature of Article 81(d). The intentions of the Board of Governors cannot be doubted as they had introduced the provision with a view to tackle and deal with recalcitrant and irresponsible teachers and other employees who remain absent in an unauthorised manner, thereby jeopardising the interests of the students and affecting the education system itself. Undoubtedly, the provision had been incorporated for a laudable cause and in the interest of education and the students. It is intended to deal with a situation where an employee of the Kendriya Vidyalaya Sangthan abstains/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended. In such a situation, he provisionally loses his lien on his post unless (a) he returns within fifteen calender days of the commencement of the absence or the expiry of leave originally granted or subsequently extended, as the case may be, and (b) satisfies the Appointing Authority that his absence or his inability to return on the expiry of the leave, as the case may be, was for reasons beyond his control. The employee not reporting for duty within fifteen calender days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose lien on his post.
7. Now, the question is whether Article 81(d) inserted in the Education Code is ultra vires of the provisions of Articles 311, 14 and 16 of the Constitution and is further in flagrant violation of the principles of natural justice. Before proceeding further, we would like to observe that the provisions of Article 81(d) have taken care of the principles of natural justice. The employee who has been absenting in an unauthorised manner or continues to do so, is informed by a notice in writing of the fact of the unauthorised absence and is required to explain the circumstances by making a representation in writing on account of which he absented from duty. The representation of the employee receives due consideration by the Competent Authority and in certain cases where personal hearing is found to be necessary, appropriate orders are passed. If the Competent Authority is satisfied and finds that the absence was for reasons beyond the control of employee, the notice shall stand discharged and the employee would be allowed to join the duties and the period of absence shall be treated in accordance with rules. If however, the Competent Authority finds that the absence was deliberate and in fact amounted to voluntary abandonment of service, then only, an order of removal from service/loss of lien is passed. The provisions of Article 81(d) are hedged with appropriate safety valves. The delinquent employee is afforded sufficient and reasonable opportunity to place his points of view. It cannot, therefore, be suggested that the provisions of Article 81(d) deprive an employee in any manner, of the protection of the principles of natural justice.
8. Now, it is the time to consider whether the provisions of Article 81(d) are ultra vires of the provisions of Articles 311, 14 and 16 of the Constitution. To support his submission, the learned Counsel for the applicant vehemently argued that the CCS (CCA) Rules, 1965 are applicable to the employees of the Kendriya Vidyalaya Sangthan which provide an elaborate procedure for dealing with the misdemeanour or misconduct of the concerned employee, while the provisions of Article 81(d) totally negate the procedure prescribed under the said Rules of 1965. In substance, the submission of Mr. Bal, learned Counsel for the applicant was that the major penalty like removal from service cannot be imposed upon an employee without holding a departmental inquiry and if it is not reasonably practicable to hold the inquiry, the Competent Authority has to record reasons to arrive at a conclusion that it is not practicable to hold the departmental inquiry in the facts and circumstances of the case. Mr. Arora, appearing on behalf of respondents, repelled the above submissions and pointed out that the provisions of Article 81(d) are meant to dispense with the elaborate procedure prescribed under CCS (CCA) Rules for holding the disciplinary inquiry. He placed reliance on Clause (13) of Article 81(d) which reads as follows:
"(13) Applicability of the CCS (CCA) Rules:
In matters falling under this Article (i.e. 81(d) and in those matters alone, the procedure prescribed for holding inquiry in accordance with the CCS (Classification, Control and Appeal) Rules, 1965 as applicable to the employees of the Kendriya Vidyalaya Sangthan as also the other provisions of the said rules which are not consistent with the provisions of this Article shall stand dispensed with."
Article 81(d) has been incorporated with an avowed object of tackling the problem of an unauthorised absence of teachers and other employees. The provisions of the said Article are akin to the similar provisions contained in the Standing Orders of various industrial establishments wherein it has been specially laid down that an employee is deemed to have been automatically terminated from service in case he remains absent without leave for ten consecutive days. The Apex Court had the occasion to consider such provisions of automatic termination of service on account of unauthorised absence for the specified period. It has upheld the validity of the said provisions though it was ruled that the principles of natural justice are implicit in the said provisions and they have to he road as being an integral part of the Standing Order providing for automatic termination of; service. This aspect of the matter needs a little more elaboration and therefore, we proceed to refer to at least two decisions of the Apex Court on the point.
9. In Uptron India Limited v. Shammi Bhan and Anr., 1998(3) SLJ 223, where there was a provision in Clause 17(g) of the certified standing orders with regard to automatic termination of services of a permanent employee if he, absents in an unauthorised manner for a period more than seven days, it was observed that the services of permanent employee if he absents in an, unauthorised manner for a period more than seven days, cannot be terminated abruptly and arbitrarily either by giving him a month's or three months' notice or pay in lieu thereof or even without notice notwithstanding that there may be a stipulation to that effect either in the contract of service or in the certified standing orders. It was further held that the said provision is to he complied in the discretion of the employer based on objective consideration of all the circumstances and material which may be available on record. What are the circumstances which compel the employee to proceed on leave; why he overstayed the leave; was there any unjust or reasonable cause for overstaying the leave; whether he gave any further application for extension of leave, whether any medical certificate was sent if he had, in the meantime, fallen sick, are the questions which would naturally arise while deciding to terminate the services of the employee for overstaying the leave. The employee against whom action on the basis of the provisions of Clause 17(g) is proposed to be taken, is the proper person to answer the above questions and, therefore, he must he given an opportunity of hearing. The Apex Court ruled that the principles of natural justice which have to be read into the offending clause, must be complied with and the employee must he informed of the grounds for which action was proposed to he taken against him for overstaying the leave. The implication of the decision of the Apex Court is that the services of a permanent employee could be terminated if he has absented in an unauthorised manner for a period of more than seven days in view of Clause 17(g) provided he has been given an opportunity of hearing and the order is passed on objective consideration of the material brought before the Competent Authority. In an earlier case, D.K. Yadav v. IMA Industries Ltd. 1993(3) SCC 259, the Apex Court reiterated and emphasised in no uncertain/terms that principles of natural justice would have to he read into the provisions relating to automatic termination of services. The celebrated decisions in the case of West Bengal State Electricity Board and Ors. v. Desk Bandhu Ghosh and Ors., 1985(3) SCC 116=1985(1) SLJ 318 (SC), O.P. Bhanddri v. Indian Tourism Developmental Corporation Ltd. and Ors., 1996(4) SCC 377= 1993(3) SLJ 82 (SC) and Constitution Bench decision in the case of Delhi Transport Corporation v. DTC Mazdoor Congress and Ors., 1991 Supplement (1) SCC 600=1991(1) SLJ 56 (SC), were considered. The law as firmly stood was that the services of a confirmed employee could not be legally terminated by a simple notice. The concerned employee has to be given an opportunity of placing his point of view and the appropriate orders are to be passed taking into consideration the representation or the reply submitted by him.
10. There is yet another case on the point, namely, Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and Anr., JT 2060(5) SC 243=2001(2), SLJ 89 (SC), in which the question for determination was whether an employee of the Bank could be deemed to have voluntarily abandoned his service in the light of Clause 16 of Fourth Bipartite Settlement between the Management of Syndicate Bank and Employees before passing the order treating him to have abandoned his service. As regards the principles of natural justice, it was observed that:
(i) workman should know the nature of the complaint or accusation;
(ii) an opportunity to stale his case; and
(iii) The Management should act in good faith which means that the action of the Management should be fair, reasonable and just.
Clause 16 of the Agreement, it was held cannot Be said to be arbitrary, unreasonable or ultra vires of Article 14 of the Constitution. In other words, before taking action under the said clause, an opportunity should be given to the employee to show cause against the action proposed and if the cause shown by the employee is good and acceptable, it follows that no action in terms of the said clause will be taken. Understood, in this sense, it cannot be said that the said clause is either unreasonable or violative of Article 16 of the Constitution.
11. There is yet another decision of the Apex Court in the case of Aligarh Muslim University and Ors. v. Mansur Ali Khan, 2000(4) RSJ 67=2001(1) SLJ 409 (SC). In this case, emphasis was laid on the "test of prejudice" and it was held that in every case-where the principles of natural justice are said to have been violated, it is not necessary to quash the offending order unless serious prejudice has been caused to the concerned employee. Reliance was placed on the earlier decision of the Apex Court in the case of Gadde Venkateswara Rao v. Government of Andhra Pradesh 1966(2) SCR 172 in which it was held that it is hot necessary to quash the order merely because of violation of principles of natural justice. Earlier; the breath of principles of natural justice was in itself treated as prejudice and no other ''de novo prejudice" was needed to be proved. This line of reasoning was deviated from in the case of S.L. Kapoor v. Jagmohan 1980(4) SCC 379 in which two exceptions were carved out firstly, "if upon admitted or indisputable facts, only one conclusion was possible" then, in such a case the principle that breach of natural justice was in itself a prejudice, would not apply. In other words if no other conclusion; was possible on the admitted or indisputable facts, it is not necessary to quash the order which was passed in violation of natural justice. Secondly, in addition to the breach of natural justice, real 'prejudice' must also be proved to have been caused. This theory has been developed in the case of K.L. Tripathi v. State Bank of India 1984(1) SCC 43=1983(2) SLJ 623 (SC) in which it ,was laid down that not mere violation of natural justice, but de facto, prejudice had to he proved. The law on the point has been exhaustively dealt with in the case of State Bank of Patiala v. S.K. Sharma, 1996(3) SCC 364, In that case, principle of 'prejudice' has been further elaborated. The same principle has been reiterated in Rajinder Singh v. State of M.P., 1996(5) SCC 460. In the case of M.C. Mehta v. Union of India, 1999(6) SCC 237, it was held that there may be certain situation in which an order passed in violation of natural justice need not be set aside, for example where no prejudice is caused to the person concerned interference of the Court is not necessary.
12. In the instant case, the applicant had been absenting from her duties in an unauthorised manner right from 25.6.1996 and during the long period of about four years of her absence, she never exhibited her intention to stage a comeback. This admitted fact speaks for itself and there remains no doubt about the applicability of the provisions of Article 81(d). Since on the ground that the applicant has been absenting herself for a period of about four years without sanction of her leave i.e. in an unauthorised manner, no prejudice was likely to be caused to her even if there was violation of principles of natural justice, though as pointed out above, in the present case, the said principles have not been violated. In the absence of proof of prejudice to the applicant, the order of demand removal from the date of her unauthorised absence, i.e. 26.6.1996 cannot be faulted.
13. Sequel to the above, is the submission of the learned Counsel for the applicant that under Article 81(d), requirement of 'personal hearing' had been made discretionary. As a matter of fact, in the case where the unauthorised absence is admitted and explanation offered for long absence, is not found to be satisfactory, no useful purpose would be served by affording a personal hearing to the applicant. Should the Competent Authority grant a personal hearing or not would depend on the facts and circumstances of each case and it is expected that the Competent Authority would exercise his discretion to grant personal hearing to the absentee employee in a judicious manner. It is for him to decide in which case he has to grant the personal hearing and in which not. No strait-jacket formula with regard to the grant or otherwise of the 'personal hearing' can be laid down.
14. A passing reference may also be made to another submission of Mr. Bal that the provisions of Clauses (1) and (3) of Article 81 (d) deal with the loss of lien of a permanent employee though it cannot be terminated except by following a due procedure under the CCS (CCA) Rules. An employee whose services have been terminated or who is removed from service, automatically loses his lien on the post. Retention of lien is only possible when an employee goes from one cadre post to another, for example, on deputation. The lien simply means that the employee who has gone on deputation to another department does not severe his service connections from his parent department. He retains his lien in the parent department while actually working in the department where he has been taken on deputation. In the case of removal from service under Article 81(d) the loss of lien is automatic.
15. Before parting, we may take an opportunity to mention that the Competent Authority of Kendriya Vidyalaya Sangthan are not passing speaking orders. What they are doing is that they are filling in the blanks in the prescribed forms. A notice with regard to the provisional loss of lien as contemplated under Clause (3) and the final order under Clause (6) of Article 81(d), the fact remains that the Competent Authorities are expected to pass speaking orders in each case. Reasons are the bedrock for supporting the conclusions. If a speaking order is passed in that event, the concerned employee or for that matter, the Appellate Authority or the Court have an occasion to satisfy themselves that the conclusions arrived at are supported with reasons. Though in the present case, substantial compliance of the provisions of Article 81(d) has been made and in the light of the facts stated above, the impugned order cannot be said to have been passed on insufficient grounds and the fact remains that in certain cases, speaking orders are required to be passed. It would, therefore, be proper and in the interest of employee as well as the department that the final orders is passed after considering the representation of the concerned employee to the show cause/provisional notice in an objective manner. Such an order should contain the reasons for arriving at the conclusion that since the employee has voluntarily abandoned the service, he is liable to be removed. Mr. H.C. Arora, learned Counsel for the respondents may take note of this observation. He would do well to advise the department to ensure that, in future, reasoned orders are passed.
16. In the result, we find that the applicant has been rightly removed from service from the date of her unauthorised absence in accordance with the procedure prescribed under Article 81(d) of the Education Code. The impugned order does not suffer from any legal infirmity. The O.A., therefore, turns out to be devoid of any merits and substance. It is accordingly dismissed without any orders as to costs.