Central Administrative Tribunal - Bangalore
Dr M Rajesh vs Drdo on 3 January, 2025
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CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00167/2021
ORDER RESERVED : 04.12.2024
DATE OF ORDER : 03.01.2025
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE DR.SANJIV KUMAR ...MEMBER(A)
Dr.M.Rajesh,
Scientist 'D',
ARDE, DRDO,
Armament Post, Pashan,
Pune-411021.
Permanent Residential Address:
No.193, 10th Cross,
Williams Town,
Bengaluru-560046. ...Applicant
(By Advocate, Shri B.Ravindra Nath)
Vs.
1. The Secretary & Chairman,
Government of India,
Ministry of Defence,
Defence Research and
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Development Organization,
(DRDO), DRDO Bhawan,
Rajaji Marg,
New Delhi-110011.
2. The Director,
Government of India,
Ministry of Defence,
Defence Research and
Development Organization,
(DRDO), Directorate of
Personnel (DRDS-1),
DRDO Bhawan,
Rajaji Marg,
New Delhi -110011.
3. The Director,
Government of India,
Ministry of Defence,
Defence Research and
Development Organization,
(DRDO), Armament Research
and Development
Establishment (ARDE),
Armament Post,
Pashan,
Pune-411021. ...Respondents
(By Advocate, Shri Vishnu Bhat for Respondents)
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ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this original application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"(a) Issue Writ of Certiorari or any appropriate order or writ to declare and hold that the impugned order of Penalty order No.DOP/07/71055/M/01 dated 28 Sept 2020 vide Annexure A-1 as null and void.
(b) Issue Writ of Certiorari or any appropriate order or writ to declare and hold that the impugned order of penalty order DOP/07/71055/M/01/PC dated 11 Dec 2020 vide Annexure: A-2 as null and void.
(c) Declare the enquiry conducted by the enquiry officer and the enquiry report as null and void.
(d) Call for entire records from the respondents.
(e) To issue any other appropriate order or direction as this Hon'ble Tribunal deems fit in the facts and circumstances of the case, in the interest of justice and equity."
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2. The facts in brief as narrated by the applicant are that he was recruited as Scientist 'B' on an All India Merit Selection and was posted at Defence Institute of Armament Technology (DIAT), Pune on 18.12.1997, which is under DRDO Organization. Thereafter, the applicant was promoted to the grade of Scientist 'C; on 01.07.2002, Scientist 'D' on 01.07.2007 and Scientist 'E' with effect from 01.07.2013. The applicant was awarded with the prestigious Japanese Government scholarship to pursue Ph.D doctoral course at University of Tokyo, Japan. Hon'ble President of India was pleased to grant 730 days of study leave to the applicant from 04.04.2006 to 03.04.2008 and EOL without pay and allowances for a period of 1092 days from 04.04.2008 to 31.03.2011 vide order dated 16.11.2010. NOC was also granted to the applicant to proceed to Japan . The applicant was recalled from study leave vide letter dated 28.02.2011. Accordingly, he reported to DIAT, Pune and was subsequently transferred to ARDE, Pune vide letter dated 18.04.2011. In order to continue and complete the Ph.D programme at the University of Tokyo, Japan, S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 5 OA 167/2021/CAT/BANGALORE BENCH the applicant was granted EL for the period from 25.04.2011 to 31.08.2011 and HPL from 01.09.2011 to 23.12.2011. The applicant was also granted NOC to proceed back to Japan vide NOC dated 19.05.2011, further he requested for grant of EOL for the period from 24.12.2011 to 22.12.2012 vide Indian Embassy letter dated 27.10.2011. During the alleged period of absence, the applicant was directed to appear for promotion assessment in Hyderabad on 28.04.2012. Accordingly the applicant presented himself before the Assessment Board and was promoted to the post of Scientist 'E' with effect from 01.07.2013 vide promotion order dated 30.06.2012. ARDE vide letter dated 22.05.2014 directed the applicant to report to duty by 02.06.2014 or forward necessary medical certificate together with the application. Upon receipt of the said letter, the applicant immediately submitted medical certificate issued by the Authorised Medical Attendant at Japan. However, the Director ARDE, Pune sought explanation for unauthorized absence from 24.12.2011 to 25.05.2014, directed the applicant to undergo second medical opinion vide Director's letter dated 28.08.2014. The applicant requested the Director, ARDE to S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 6 OA 167/2021/CAT/BANGALORE BENCH treat his absence from duties for the period from 20.12.2012 to 16.09.2014 as sick leave on medical grounds and produced medical certificates issued from Authorized Medical Attendant in Japan. Subsequently, a request was made to treat the applicant's absence from duty with effect from 17.09.2014 to 12.03.2016 as sick leave. Medical certificate was also forwarded in this regard. Subsequently, the applicant reported to duty on 28.03.2016 in ARDE, Pune. It is the contention of the applicant that the department has recovered a sum of Rs.2,54,543/- towards the applicant's pension contribution for the leave period at Japan from 24.12.2011 to 18.04.2016 vide Military Receivable Order dated 18.11.2017. That being the position, the applicant was served with the charge Memorandum with Article of charges on 02.08.2018, which culminated in the impugned penalty order dated 28.09.2020, whereby the Hon'ble President has imposed the penalty of compulsory retirement from service with immediate effect. Pursuant to which, the applicant submitted review application, which came to be dismissed. Being aggrieved, the applicant has preferred this OA.
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3. Learned Counsel Shri Ravindra Nath appearing for the applicant submitted that several leave request applications were still pending before the competent authority for decision. Despite the same, the charge sheet was issued on the applicant on 02.08.2018 alleging unauthorized absence for the period from 24.12.2011 to 18.04.2016. Learned Counsel has placed reliance on the letter dated 22.05.2014 (Annexure A16) issued by the Senior Admin Officer-II addressed to the applicant to contend that the applicant's request for sanction of leave was not rejected. Reliance was placed on the medical certificate issued by the Authorized Medical Attendant dated 13.09.2014 (Annexure A21) to contend that the applicant was suffering from Acute Hormonal Disorder with effect from 20.12.2012 to 16.09.2014 and further on the medical certificate dated 28.03.2012 issued by the Authorized Medical Attendant (Annexure A23) to establish that the applicant was suffering from Acute Hormonal Disorder from 17.09.2014 to 12.03.2016. Learned Counsel submitted that since acquiring the knowledge and completing the Ph.D course was in the public interest of DRDO and the University of Tokyo treated the applicant S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 8 OA 167/2021/CAT/BANGALORE BENCH as any other normal student from other countries and not as any official on deputation, the applicant had to take personal interest to pursue the Ph.D and complete the course. Learned Counsel further argued that the major penalty order of compulsory retirement is harsh and is passed with pre-determined mind. The Inquiry Officer has not stated that Article of charges are proved. In such circumstances, the respondents had no reason to impose capital penalty of compulsory retirement. In similar charge of unauthorized absence of Dr. M.B.Talawar, Scientist 'F', HEMRL, Pune, the Hon'ble President of India was pleased to impose minor penalty. Therefore, the penalty imposed is unfair and unjust. Accordingly, seeks for interference of this Tribunal. Learned Counsel has placed reliance on the following judgments:
1) Karnataka Power Transmission Corporation Limited vs. S.Kiran - W.P.No.217/2023 (DD:30.10.2023) - Hon'ble High Court of Karnataka.
2) Krushnakant B. Parmar v. Union of India and Anr. reported in 2012 AIR SCW 1633 S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00'
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4. Learned Counsel for the respondent referring to the reply statement filed on behalf of the respondents argued that though the applicant was promoted to the post of Scientist 'E' with effect from 01.07.2013, but did not assume charge on false medical grounds. Subsequently, the respondents found that the applicant had already completed the Ph.D Degree on 17.11.2011. The intimation of completion of Ph.D degree was received by the respondents only on 28.03.2016. DRDO authority though had considered the applicant for promotion from 01.07.2013 and even after completion of Ph.D degree on 17.11.2011, the applicant intentionally and purposely remained absent from duty without any valid permission and valid NOC from the competent authority and intentionally did not resume the charge of higher post. The applicant himself had done the correspondence with the University of Tokyo-Japan for admission and said Ph.D. degree programme was never sponsored by the Government of India/DRDO. The applicant was never called from study leave and after availing 730 days of study leave with full pay and allowances applied four times for extension of EOL. The applicant was granted 1091 days EOL on three different occasions S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 10 OA 167/2021/CAT/BANGALORE BENCH and EOL extension on fourth occasion was rejected by the competent authority vide letter dated 28.02.2011 on the ground that leave beyond five years is not permissible and any overstay beyond 31.03.2011 will entail break-in service and forfeiture of entire past service besides attracting disciplinary action. Hence the applicant resumed to duty on 31.03.2011 after availing 1821 days study leave. The applicant worked only for 23 days from 31.03.2011 to 22.04.2011 and again applied for EL from 25.04.2011 to 31.08.2011 (129 days) and HPL from 01.09.2011 to 23.12.2011(114 days). Both the period of leave was sanctioned by the respondents. Thus the applicant was sanctioned with 243 days EL + HPL, again which was beyond five years of leave limit.
5. Despite the respondents alerted the applicant not to stay abroad without sanction of leave and NOC and adhere to the Government rulings and prevent probable disciplinary action, he remained unauthorizedly absent from duty. The medical certificates would indicate that Dr.Akihiko Otsuka has diagnosed the applicant with mood disorder not Acute Hormonal Disorder and S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 11 OA 167/2021/CAT/BANGALORE BENCH moreover he has taken treatment with the said Authorized Medical Attendant as an out-patient and the medical certificates do not indicate about the restrictions of travelling/flying from Japan to India. The applicant remained unauthorisedly absent from duty stayed abroad without any valid NOC for the period from 24.12.2011 to 18.04.2016 and reported for duty on 28.03.2016. The unauthorized absence of the applicant beyond five years has been treated as 'Dies Non' period vide letter dated 10.11.2020. The applicant had purposely and intentionally committed breach of CCS (Conduct) Rules, 1964 and therefore the respondents after initiating disciplinary proceedings issued the penalty order of compulsory retirement from service. The applicant being an employee with Respondent No.2, a copy of the impugned penalty order was delivered to the applicant, against which the applicant preferred review petition before the Hon'ble President of India- Disciplinary Authority. No fresh materials being brought out by the charged officer, in terms of Rule 29A of CCS (CCA) Rules, 1965 the penalty imposed earlier was reconfirmed. Thus justifying the action of the respondents in issuing the penalty order of compulsory S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 12 OA 167/2021/CAT/BANGALORE BENCH retirement to the applicant, learned counsel sought for dismissal of the OA.
6. We have heard the learned Counsel for the parties and perused the original records placed before us.
7. Article of Charges leveled against the applicant in terms of the charge memo dated 11.07.2018 reads thus:
"Article-I That the said Shri M.Rajesh, while functioning as Scientist 'D' , ARDE, Pune was absent from duty with effect from 24 Dec 2011 to 18 Apr 2016 without permission from the competent authority. The said Shri M.Rajesh thus acted in a manner unbecoming of a Government servant and thereby violated Rules 3(1)(iii) of CCS Conduct Rules, 1964, read with Rule 25(2) of CCS (Leave) Rules, 1972.
Article-II That the said M.Rajesh, Scientist 'D' had stayed abroad without any valid NOC issued by the competent authority with effect from 24 Dec 2011 to 18 Apr 2016. The said Shri M.Rajesh, Scientist 'D' thus acted against the existing rules and regulations in vogue and in a manner S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 13 OA 167/2021/CAT/BANGALORE BENCH unbecoming of a Government servant and thereby violated Rule 3(1)(iii) & (xviii) or CCS Conduct Rules, 1964."
Though the charge as per Article-I relates to unauthorized absence for the period from 24.12.2011 to 18.04.2016, it is apt to refer to the background of the case, which remains undisputed. The applicant availed study leave for a period of 730 days from 04.04.2006 to 03.04.2008 and EOL without pay and allowances for the period from 04.04.2008 to 31.03.2011 (1092 days). The applicant again requested for extension of EOL for one more year. Government of India rejected the same vide letter dated 28.02.2011 and the relevant portion of the said letter reads thus:
"1. Reference your letter No.TOK/EDU/321/2/2008 dated 16 Feb 2011 on the above subject received through Embassy of India. Tokyo, Japan.
2. Your request for extension of leave beyond 31 Mar 11 for completion of Ph.D as a special case has been considered by the Competent Authority. Since existing rules do not permit grant of continuous leave beyond 05 years, it is regretted that your request has not been agreed S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 14 OA 167/2021/CAT/BANGALORE BENCH to. It may please be noted that any overstayal beyond 31 Mar 11 will entail break-in service and forfeiture of entire past Government service besides attracting disciplinary action. The fact that leave beyond 05 years is not permissible was brought to your notice while applying for extension of leave last time vide our letter of even number dated 09.Aug 10.
3. In view of the above, you are requested to resume duties wef 01 Apr 11 on expiry of the present spell of leave sanctioned to you till 31 Mar 11 failing which you will be liable for action as mentioned in Para 2 above."
Accordingly, the applicant reported to DIAT, Pune in March, 2011 and subsequently got transferred to ARDE, Pune on 18.04.2011. Thereafter, the Director, ARDE granted the applicant EL for the period from 25.04.2011 to 31.08.2011 and HPL from 01.09.2011 to 23.12.2011, both the period of leave vide letter dated 20.04.2011. On 26.10.2011, the applicant submitted an application in the prescribed format to the Director, ARDE seeking leave for one more year.
8. The contention of the applicant that during the pendency of his leave request application relating to the period from S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 15 OA 167/2021/CAT/BANGALORE BENCH 24.12.2011 to 22.12.2012 submitted vide Indian Embassy letter dated 27.10.2011, he was directed to appear for assessment in Hyderabad on 28.04.2012 and as such there was deemed approval of leave, deserves to be negated for the reason that in the letter dated 28.02.2011 referred to supra, it was specifically made clear in unequivocal terms that no leave beyond five years is permissible and accordingly the applicant was requested to resume duties from 01.04.2011 on expiry of the said spell of leave sanctioned till 31.03.2011. It was also cautioned that failure to report to duty after expiry of the period of leave sanctioned would entail break in service and forfeiture of entire past Government service besides attracting disciplinary action. Knowing well about the same, the applicant though appeared for assessment for his promotion in Hyderabad on 28.04.2012, failed to find out the actual status of the leave application (alleged pending). Indeed the applicant was promoted to the post of Scientist 'E' with effect from 01.07.2013 vide promotion order dated 30.06.2012. Learned Counsel has placed strong reliance on the letter dated 22.05.2014 issued by the Respondent No.3 (Annexure A16) in support of his contention that S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 16 OA 167/2021/CAT/BANGALORE BENCH the so called leave application submitted by the applicant before the Embassy for the period from 24.12.2011 to 23.12.2012 was not rejected. The said letter reads thus:
"Subject : UNAUTHORISED ABSENCE FROM DUTIES.
Reference your application dated 21 April 2011 regarding NOC for proceeding abroad.
2. As per your above referred application, the Competent Authority had issued NOC for proceeding abroad (Japan) for a period of 08 months i.e. from 23 April 2011 to 23 Dec 2011 to complete Japanese Govt. sponsored Ph.D program and you were supposed to report back for duties on 24 Dec 2011. However you have not reported back for duties till date.
3. Further you have submitted one more application dated 26.10.2011 with a request to grant Extra Ordinary Leave (Without pay and allowances) for one more year from 24 Dec 2011 to 23 Dec 2012 with the reasons that you have not completed the Ph.D course. Thereafter you are still continuing unauthorized absence without any intimation till date.
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4. Kindly note that while taking NOC for proceeding abroad you have submitted an undertaking that "I undertake that I shall not settle permanently abroad and rejoin my duty after expiry of leave".
5. In view of the above, you are hereby directed to report for duty immediately but not later than 02 June 2014. In case you are sick necessary Medical Certificate together with application be forwarded immediately failing which disciplinary action under CCS Conduct Rules will be initiated against you."
9. In our considered opinion, the pith and substance of the letter gains significance. We are quoting this letter in order to address the arguments advanced by the learned Counsel for the applicant that in the inquiry report while assessing the evidence in respect of each Article of charge, the Inquiry Officer has wrongly (alleged) observed that ARDE vide letter dated 22.05.2014 has stated that "his application for leave is rejected and advised him to join his duties immediately but not later than 02.06.2014". In the said letter dated 22.05.2014 it was emphasized that the competent authority had issued NOC to the applicant for proceeding abroad S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 18 OA 167/2021/CAT/BANGALORE BENCH (Japan) for a period of 08 months i.e., from 23.04.2011 to 23.12.2011 to complete Japanese Government sponsored Ph.D program and the applicant was supposed to report back for duties on 24.12.2011. Further it has been directed to report for duty immediately but not later than 02.06.2014 referring to the application dated 26.10.2011 submitted by the applicant with a request to grant EOL for one more year from 24.12.2011 to 23.12.2012. A comprehensive reading of this letter, in our considered view, means rejection of extension of EOL sought by the applicant and as such the assessment of the Inquiry Officer made on the said premise cannot be faulted with.
10. In response to the letter dated 22.05.2014 (Annexure A16), the applicant submitted letter dated 26.07.2014 to treat his absence as sick leave taking support of the medical certificate issued by the Authorised Medical Attendant with effect from 26.05.2014, to which the applicant was asked to explain the unauthorised absence from 24.12.2011 to 25.05.2014 and was also to report to Sassoon Hospital, Pune for second medical opinion. It appears that the S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 19 OA 167/2021/CAT/BANGALORE BENCH applicant misused the contents of the Respondent's letter dated 22.05.2014 and made an hypothetical statement that he was sick from 26.05.2014 in Japan. Further it is significant to note that the applicant had completed his Ph.D degree on 17.11.2011 but over stayed on corroborated medical grounds. The applicant intentionally routed non-recommended leave application through Embassy of India, Japan and further started submitting OPD medical certificates from AMA, Dr.Akihiko Otsuka, by taking shelter under the Respondents' letter dated 22.05.2014 . However, the applicant has not appeared for the second opinion before the Sassoon General Hospital, Pune, on the ground that he was advised not to fly as he was undergoing medical treatment and recovery, as could be seen from the application/letter dated 05.02.2015. It is clear that the applicant has neither produced any medical certificates as evidence for not to fly nor any certificate from University of Tokyo in support of his travel inability. Again the applicant has taken shelter under the medical certificates issued by AMA, Tokyo, Dr.Akihiko Otsuka for the period from 17.09.2014 to 12.03.2016. From the aforesaid medical certificates, it is clear that S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 20 OA 167/2021/CAT/BANGALORE BENCH the applicant has taken 1576 days OPD treatment from Dr.Akihiko Otsuka, but nowhere it is certified by the AMA about the inability of the applicant to fly. The diagnosis of acute hormonal disorder now claimed by the applicant appears to be self-declared and certified whereas the medical certificates issued by the Dr.Akihiko Otsuka would reveal that the applicant was diagnosed with mood disorder as per the translation provided by the Respondents. No specific period for medical treatment/rest period is advised by the said Doctor. In the modern life distress and depressions are the by- products as observed by the Hon'ble High Court of Karnataka in the case of KPTCL vs. S.Kiran in Writ Appeal No.217/2023 (DD:
30.10.2023). The relevant para reads thus:
"4. .......... Distress and depressions are the by-products of modern life, whichever be the calling. Stress is the product of the psychological or emotional pressure that we experience both in our personal and occupational lives. Often it is difficult to insulate the stress, and to determine its impact on day to day activities. There may come a point that the 'stressors'encountered in the work place lead to the inability to function in a work environment. A decision to S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00'
21 OA 167/2021/CAT/BANGALORE BENCH lay an employee off work, with or without just cause, may well escalate the level of depression. What the Hon'ble Apex Court in Ravinder Kumar Dhariwal vs. UOI, (2023) 2 SCC 209, observed at para 79 is profitably reproduced:
"International conventions like the 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... Employees often do not disclose their mental health disorders, which leads to the invisibilisation 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... Exclusion from the workforce not only creates conditions of material deprivation, but it also impacts self-confidence, and results in isolation and marginalisation 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...."
S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 22 OA 167/2021/CAT/BANGALORE BENCH These realities of life cannot be lost sight of while adjudging the woes of workmen; after all, life being what it is, spares none from its kiln. ............................................."
11. Laying down the aforesaid legal principles, the Hon'ble High Court on examining the unauthorised absence of the workman for a period of 632 days on various occasions resulting in punishment of dismissal set aside by the Labour Court and concurred by the learned Single Judge, observed that the same does not warrant interference by the Division Bench. Yet another aspect which was considered was the maintainability of the intra- Court appeal against the orders of the learned Single judge passed under Article 227 though Article 226 of the Constitution was ornamentally employed in the pleadings of the Management, while dismissing the Writ appeal. In our considered view, this judgment would be of little assistance to the applicant in the present case, who remained unauthorisedly absent for the period from 24.12.2011 to 18.04.2016 despite availing leave from 04.04.2006 to 23.12.2011.
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12. Annexure A20, the request letter of the applicant dated 16.09.2014 refers to the period 20.12.2012 to 16.09.2014 to be considered as sick leave placing reliance on the medical certificate of Japanese language with the corresponding English version enclosed. Medical certificate is dated 13.09.2014 and the same relates to the period, 20.12.2012 to 16.09.2014. Thus it is evident that the applicant discovered that he has to produce medical certificate for the absent period after 21 months. It is pertinent to note that the four medical certificates in Japanese language issued by Dr.Akihiko Otsuka, AMA translated to English language by Dr.Manasi Shirgurkar, Proprietor, Japanese Hub, Japanese Language and Career Counsellor, Pune-411043 and certified vide letter dated 22.06.2021 is placed on record by the respondents at Annexure R21 and the same reads thus:
"22.06.2021 To whomsoever concerned This is to certify that as per the request letter received from the Office of DIRECTOR, ARDE dated 15th June, 2021 (ref.no.ARDE/Lega/DMR/167/2021), I have translated the documents from Japanese to English (4 medical certificates S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 24 OA 167/2021/CAT/BANGALORE BENCH and a fax report) to the best of my knowledge and have submitted the translation in soft copy as well as hard copy.
Sd/-
Dr.Manasi Shirgurkar Proprietor, Japanese Hub."
The translated medical certificates dated 13.09.2014, 26.07.2015, 12.03.2016 and 13.03.2016 at Annexure R22, R23, R24 and R25 respectively, reads thus:
"Medical Certificate Address:1-12-5-301 Mita, Tama-ku, Kawasaki, Name: Mohan Rajesh Birth date: January 26, 1972.
Disease name: Mood disorder As a result of the above person's examination I hereby certify that, he requires to take treatment as an outpatient (OPD).
My diagnosis is as above.
September 13, 2014 Address:
T 263-0031, 3-19-16 Inage (East), Chiba-city Otsuka Clinic Tel:043 (242) 3000 Doctor: Akihiko Otsuka."
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"Medical Certificate
Address:1-12-5-301 Mita, Tama-ku, Kawasaki, Name: Mohan Rajesh Birth date: January 26, 1972.
Disease name: Mood disorder As a result of the above person's examination I hereby certify that, he requires to take treatment as an outpatient (OPD).
My diagnosis is as above.
July 26, 2015 Address:
T 263-0031, 3-19-16 Inage (East), Chiba-city Otsuka Clinic Tel:043 (242) 3000 Doctor: Akihiko Otsuka."
"Medical Certificate Address:1-12-5-301 Mita, Tama-ku, Kawasaki, Name: Mohan Rajesh Birth date: January 26, 1972.
Disease name: Mood disorder As a result of the above person's examination I hereby certify that, he requires to take treatment as an outpatient (OPD).
My diagnosis is as above.
March 12, 2016
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Address:
T 263-0031, 3-19-16 Inage (East), Chiba-city Otsuka Clinic Tel:043 (242) 3000 Doctor: Akihiko Otsuka."
"Medical Certificate Address:1-12-5-301 Mita, Tama-ku, Kawasaki, Name: Mohan Rajesh Birth date: January 26, 1972.
Disease name: Mood disorder As a result of the above person's examination I hereby certify that, he requires to take treatment as an outpatient (OPD).
However, I certify that he can work.
My diagnosis is as above.
March 13, 2016 Address:
T 263-0031, 3-19-16 Inage (East), Chiba-city Otsuka Clinic Tel:043 (242) 3000 Doctor: Akihiko Otsuka."
The English translation of medical certificates produced by the applicant refers to the name of the disease as "Acute Harmonal Disorder whereas the translation received by Dr.Manasi Shirgurkar, S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 27 OA 167/2021/CAT/BANGALORE BENCH Proprietor, Japanese Hub, indicates the name of the disease as "Mood Disorder", the same is not refuted in the Rejoinder filed by the applicant.
13. The post of Scientist in DRDO is very important, the unauthorised absence of such officers holding premier posts would not only hamper the research and scientific programs of the department for which such Scientists are employed, but blocks the entry of other meritorious aspiring candidates, who are ready to discharge such duties, if appointed. Hence unauthorised absence of the applicant has dual adverse effect, firstly on the department and secondly on the public at large in addition to effecting the rights of the competent aspiring candidates. Moreover, the applicant's illness is not certified by any Doctor as an inability to fly/travel. It remains a big question as to how the applicant was able to sustain himself in a foreign country, Japan after obtaining the Ph.D degree from the University of Tokyo, Japan from 17.11.2011 till his return to India and rejoined duty on 28.03.2016. Be that as it may, it remains uncontroverted that the applicant was taking treatment only S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 28 OA 167/2021/CAT/BANGALORE BENCH as an outpatient with Dr.Akihiko Otsuka as per the medical certificates placed on record. No medical certificate issued from any Government Hospital has been placed on record. The applicant has suppressed the material fact of completing his Ph.D degree on 17.11.2011, till March, 2016. The applicant's leave letters was not recommended by the University of Tokyo, Japan, where the applicant was pursuing his Ph.D degree.
14. Yet another contention of the learned Counsel for the applicant that no original impugned penalty order dated 28.09.2020 was served on the applicant but only the photocopy of the said order served on him contains some signature with date 30.06.2020, as such, the order passed by the Disciplinary Authority on 28.09.2020 is doubtful, deserves to be rejected for the following reasons:
In the original file placed before us by the respondents, the original copy of the impugned penalty order dated 28.09.2020 is available sans any such notings with the date 30.06.2020. Any writings made on the photocopy of the order, has no relevancy to adjudicate upon the controversy involved herein i.e., with respect to S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 29 OA 167/2021/CAT/BANGALORE BENCH penalty imposed for unauthorised absence for about five years after availing leave for about five years. Similarly, the arguments of the learned Counsel for the applicant that the inquiry authority has not given any findings in his report, also falls to ground since inquiry report speaks about the findings of each Article of charges framed against the applicant, wherein regarding charge no.1, it is clearly observed that in the absence of any approval of leave from the competent authority from 24.12.2011, i.e., absence from 24.12.2011 to 18.04.2016 is an unauthorised absence; though the applicant appeared for assessment at Hyderabad on 28.04.2012, but did not make any efforts to know about the status of his leave application.
As regards Article No.II, the finding given is that the applicant has applied for one year EOL from 24.12.2011 to 23.12.2012 through Indian Embassy at Japan on 26.10.2011, however he has not requested for NOC to continue to stay in Japan after 24.12.2011.
15. Purposive interpretation of the inquiry report is warranted rather than the literal interpretation. Reading of the inquiry report as a whole with the findings indicates the mind of the inquiry S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 30 OA 167/2021/CAT/BANGALORE BENCH authority. We find no semblance of doubt on this aspect of the findings given by the Inquiry Officer to hold that the Article of charges framed against the applicant are held to be proved.
16. It is sine-qua-non for a Government servant to take prior permission to go and stay abroad. Permission taken at the time of going abroad cannot be presumed to be in existence as long as the Government servant stays abroad. Such permission is for a specified period and location. In the instant case NOC period of the applicant had expired on 24.12.2011.
17. Clarification issued by the DOPT printed as Clarification Nos.30(A), 30(B) and 30 (C) in the Swamy's Compilation of Central Civil Services Conduct Rules at Page 65 and 66, 46th Edition-2022 reads thus:
"(30-A) Requirement of taking prior permission by Government servants for leaving station/headquarters.- Doubts have been expressed by Ministries/Departments as to whether a Government servant is required to take permission before leaving station/headquarters during leave or otherwise, especially for visits abroad.
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2. Attention of the Ministries/Departments is invited in this connection to the provisions of FR 11 which provides that 'unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him....' Article 56 of the Civil Service Regulations also provides that 'no officer is entitled to pay and allowance for any time he may spend beyond the limits of his charge without authority'. It is implicit in these provisions that a Government servant is required to take permission for leaving station/headquarters. It is thus clear that such permission is essential before a Government servant leaves his station or headquarters and more so when he proposes to go abroad during such absence, as such visit may have wider implications.
3. However, separate permission may not be necessary where a Government servant has indicated his intention of leaving headquarters/station along with leave address while applying for leave. The leave application form prescribed under the CCS (Leave) Rules, 1972 contains necessary columns in this regard. In case the leave applied for the purpose of visiting foreign country is sanctioned, it would imply that permission for going abroad is also granted and therefore, leave sanctioning authorities should keep this aspect in mind while granting the leave applied for. In the case of officers who are competent to sanction leave for themselves, they should obtain permission for S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 32 OA 167/2021/CAT/BANGALORE BENCH leaving station from their superior authority. Failure to obtain permission of competent authority before leaving station/headquarters especially for foreign visits is to be viewed seriously and may entail disciplinary action. [G.I. Dept. Of Per. & Trg., O.M.No.11013/7/94-Estt(A), dated the 18th May, 1994).
(30-B) The above instructions have been reviewed and it has been decided that while granting leave the sanctioning authority shall take prior approval, if required, for permitting the officer to go abroad as per the existing instructions. [G.I. Dept. Of Per.&Trg., O.M.No.11013/8/2000-Estt.(A), dated the 7th November, 2000] (30-C) Further clarifications._ Reference is invited to (30-B) above in which it has inter alia, been clarified that the Government servant should take permission for leaving station/headquarters especially for private visits abroad . It has also been clarified in O.M.No.11013/8/2000-Estt.(A), dated the 7th November, 2000 that the leave sanctioning authority while granting leave shall take prior approval, if required, for permitting the officer to go abroad as per the existing instructions. Despite these instructions, instances have come to the notice of the Government where Government servants have left their headquarters without taking prior permission and proceeded abroad.
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2. The High Court of Delhi in its judgment dated the 28th May, 2004 in the Criminal Writ Petition No.1004/03 (Chandra Kumar Jain v. Union of India) has observed that a Government servant who had visited some foreign countries 161 times on private visits without permission was never questioned and no one in the customs and the other departments suspected why a Government servant was so frequently (161 times) making private visits without permission. The High Court has, therefore, directed the Central Government to frame guidelines on foreign private visits of the Government servants.
3. Keeping in view the observation of the High Court, the Ministries/Departments are requested to bring the existing instructions on the subject matter to the notice of all concerned and ensure that Government servants take prior permission before leaving for visits abroad as required under these instructions. When such permissions to visit abroad is sought, the Government servant is required to furnish information relating to proposed and previous private visits as per the pro forma (enclosed).
PROFORMA (See O.M.NO.11013/7/2004-Estt.(A), dated the 5th October, 2004)
1. Name
2. Designation
3. Pay
4. Ministry/Department (Specify Centre/State/PSU)
5. Passport No. S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 34 OA 167/2021/CAT/BANGALORE BENCH
6. Details of private foreign travel to be undertaken.
Period of abroad Name of Purpose Estimated Source Remarks
From To Foreign Expenditure of Funds
countries (Travel,
to be board/lodging
visited visa, misc.
Etc.)
7. Details of previous private foreign travel, if any, undertaken during the last four years (as under Item No.6).
Name:
Designation:
Date:
[DOP&T, O.M.No.11013/7/2004-Estt(A), dated the 5th October, 2004 as amended by OM dated the 15th December, 2004.]"
18. Based on the said clarifications OM dated 05.10.2004 has been issued by the Department of Personnel and Training, wherein it has been clarified that the Government servant must take prior permission for leaving station/headquarters especially for private visits abroad. The said OM reads thus:
"Sub. Requirement of taking prior permission by Government servants for leaving station/headquarters.
The undersigned is directed to refer to this Department's O.M. No. 11013/7/94-Estt. (A) dated the 18th May, 1994 in which it has) inter alia, "" been clarified that the Government servant should take permission for leaving S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 35 OA 167/2021/CAT/BANGALORE BENCH station/headquarters especially for private visits abroad. It has also been clarified in O.M. No. 11013/8/2000-Estt. (A) dated the 7th November, 2000 that the leave sanctioning authority while granting leave shall take prior approval, if required, for permitting the officer to go abroad as per the existing instructions. Despite these instructions, instances have come to the notice of the Government where Government servants have left their headquarters without taking prior permission and proceeded abroad.
2. The High Court of Delhi, in its judgment dated the 28th May, 2004 in the Criminal Writ Petition No. 1004/03 (Chandra Kumar Jain Vs. Union of India,) has observed that a Government servant who had visited some 'foreign countries 161 times on private visits without permission was never questioned and no one in the customs and the other departments suspected why a Government servant was so frequently (161 times), making private visits without permission. The High Court has, therefore, directed the Central Government to frame guidelines on foreign private visits of the Government servants.
3. Keeping in view the observation of the High Court the Ministries/Departments are requested to bring the existing instructions on the subject matter to the notice of all concerned and ensure that Government servants take prior S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 36 OA 167/2021/CAT/BANGALORE BENCH permission before leaving for visits abroad as required under these instructions. When such permission. to visit abroad is sought the Government servant is required to furnish information relating to the proposed and previous private visits as per the proforma (enclosed)."
19. Thus, it has been inter alia clarified in the OM dated 05.10.2004 issued by the DOPT that the Government servant should take permission for leaving station/headquarters especially for private visits abroad. Government servants staying abroad without NOC is very serious. Indeed the applicant himself has committed in writing while applying for NOC for proceeding abroad that he will return after 08 months i.e., after expiry of his NOC period, which shows that the applicant was well aware that he had to return back to India after expiry of NOC period. The objective of Government servant taking NOC to travel abroad has multiple effects depending upon the nature of the post held by the Government servant. Having regard to the various factors, administration takes a decision in issuing the NOC. After the sanctioned NOC period is over, the Government servant staying abroad amounts to misconduct. These aspects have been considered and S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 37 OA 167/2021/CAT/BANGALORE BENCH adjudicated upon by the inquiry authority and the disciplinary authority after providing fair opportunity to the applicant and following due process of law.
20. Rule 12 of CCS Leave Rules, 1972 reads thus:
"12. Maximum ;amount of continuous leave (1) No Government [servant] shall be granted leave of any kind for a continuous period exceeding five years. (2) Unless the President, in view of the exceptional circumstances of the case, otherwise determines, a Government servant who remains absent from duty for a continuous period exceeding five years other than on foreign service, with or without leave, shall be deemed to have resigned from the Government service:"
This Rule makes it clear about the maximum of five years continuous period of leave that could be granted to a Government servant.
21. In B.C.Chaturvedi v. Union of India & Others reported in (1995) 6 SCC 749, the Hon'ble Apex Courts held as under:
"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 S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 38 OA 167/2021/CAT/BANGALORE BENCH 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 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 re- appreciate 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 S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 39 OA 167/2021/CAT/BANGALORE BENCH 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."
This view is consistently reiterated in plethora of judgments. It is settled that the scope of judicial review on the orders of Disciplinary proceedings is very limited. The scope of judicial review is only to examine whether the decision making process is valid. We find no procedural lapse or ignoring any material evidence or finding in the order of the Disciplinary authority.
22. In Krushnakant N.Parmar supra, the appellant therein, was principally charged for unauthorised absence from duty during three consecutive period: (i) 3rd October, 1995 to 7th November, 1995 (36 days); ( ii) 9th November, 1995 to 10th December, 1995 (32 days); and (iii) 10th December, 1995 to 2nd August, 1995 (234 days). At the first instance, the Government employee, was transferred from Palanpur to Nadiad and he was relieved and joined at Nadiad. Further the said transfer order was cancelled by the respondents and he was transferred at a distant place which was the S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 40 OA 167/2021/CAT/BANGALORE BENCH subject matter before the CAT. The Hon'ble Apex Court observed that the evidence led by the appellant in support of his claim that he was prevented to sign the attendance register and to perform duty though noticed, the Inquiry Officer on presumption and surmises, held that the charge has been proved. In that context the Hon'ble Apex Court held that if the absence is the result of compelling circumstances under which it was impossible to report or perform duty, such absence cannot be willful. But in our considered opinion this judgment is not applicable to the facts of the present case.
23. Even on the quantum of punishment, it is settled that the punishment which does not shock the conscience of the court, warrant no interference. In the case of G.Ramesh vs. The Karnataka State Seeds Corporation Ltd., reported in Livelaw (Kar) 281 (W.P.No.36199/2014, DD:05.06.2024), the Hon'ble High Court of Karnataka held that the employee's unauthorized absence for a total of 922 days justified his dismissal.
24. Quantum of punishment depends upon the facts and circumstances of each case. No parity can be claimed by the S SARALADEVI S CAT, BANGALORE SARALADEVI2025.01.08 11:17:23-08'00' 41 OA 167/2021/CAT/BANGALORE BENCH applicant unless a common disciplinary proceedings are conducted based on the same incident. No such material being placed on record, no interference is warranted by this Tribunal even on the ground of parity sought with one Dr.M.B.Talawar. Given the circumstances, the penalty of compulsory retirement imposed on the applicant cannot be held to be unjustifiable. Considering these aspects, review petition filed by the applicant has been rightly dismissed.
25. For the reasons aforesaid, OA lacks merit. Resultantly, OA stands dismissed.
No order as to costs.
(DR.SANJIV KUMAR) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.
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