Central Administrative Tribunal - Bangalore
P B Bhajanthri vs D/O Posts on 7 March, 2023
1 OA No.103/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/0
NO.170/00103/2022
ORDER RESERVED ON : 24.02.2023
DATE OF ORDER : 07.03.2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri
hri P.B.Bhajanthri,
S/o Bheemappa Bhajantri,
Aged 57 years, working as
M.T.S., Haveri Head Post Office,
(Now removed from service),'
Residing at near KSRTC Bus Stand,
Bankapura, Taluk:Shiggaon,
Haveri District - 581202. ...Applicant
(By Advocate Shri A.R.Holla )
Vs.
1. The Union of India,
By Secretary,
Department of Post,
Dak Bhavan,
New Delhi
elhi - 110 001.
2 OA No.103/2022
2. The Chief Post Master General,
Karnataka Circle,
Bangalore - 560 001.
3. The Direct of Postal Services,
North Karnataka Region,
Office of the Postmaster General,
N.K.Region,
Dharwad - 580001.
4. The Superintendent of Post Offices,
Haveri Division,
Haveri - - 581110. ....Respondents
(By Advocate Shri S Prakash Shetty)
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
Administrative "(i)
(i) To quash (a) Memo No.F2/Rule No.F2/Rule-14/PBB/16 dated @ Haveri the 20.12.2016, issued by the rerespondent No.4, Annexure A3, (b) Order No.NKR/VIG/Appeal/962/17 DATED AT DHARWAD-580001, DHARWAD 580001, the 27.11.2019, issued by the respondent No.3, Annexure A5 and (c) Memo No.Vig/15 01/2020 dated @ Bengaluru No.Vig/15-01/2020 Bengaluru-1 the 27.01.2022 Annexure A8.3 OA No.103/2022
(ii) Direct the respondents to reinstate the applicant in service with the benefit of continuity of service and extend the consequential benefits to him accordingly and
(iii) Grant such other relief as deemed fitfit, having regard to the facts facts and circumstances of the case."
2. The facts in brief as stated ated by the applicant are that he joined Department of Posts as Group 'D' Packer on 20.05.1992. As he remained absent from duties from 01.12.2014 disciplinary proceeding proceedings were initiated against him under Rule 14 of CCS (CCA) Rules, 1965 ('Rules' for short) framing an article of charge of unauthorized abs absence vide memo dated 17.09.2015. In In the inquiry held into the charge, the applicant admitted the charge and accordingly the charge was held as proved against the applicant vide inquiry report dated 22.08.2016. Based on the findings of inquiry, the Respondent No.4 imposed the penalty of removal emoval from service by an order dated 20.12.2016. The appeal filed by the applicant against the order of penalty has been rejected by the Respondent No.3 by an order dated 27.11.2019. Thereafter, the applicant submitted a revision petition before the Respondent No.2, which came to be rejected. Hence this application.
4 OA No.103/2022
3. Learned Counsel Shri A.R.Holla representing the applicant submitted that absence from duty of the applicant has been blown out of proportions and penalty of removal from service has been imposed on the applicant without any justification. There has been no fairness in the action of the Respondent No.3. It was obligatory to consider the appeal in accordance with Rule 27 of CCS (CCA) Rules, 1965, inasmuch as whether the inquiry has been held in accordance with the Rules, whether findings are based on evidence and are justified and whether the penalty imposed is excessive. The Appellate Authority has failed to consider these aspects, but mechanically passed the order rejecting the aappeal. The Respondent No.2 has failed to consider the grounds urged by the applicant. There has been inordinate delay in considering the revision petition of the applicant. The learned Counsel argued that the penalty imposed on the applicant is too to harsh sh and disproportionate to the misconduct alleged against him.
4. The learned Counsel for the applicant plac placing reliance on the judgement of Hon'ble Apex Court in the case of Krushnakant B.Parmar Vs. Union of India and another reported in 2012(2) AISLJ 119, argued that at the question whether absence is wilful or because of compelling 5 OA No.103/2022 circumstances is the mandatory criteria to be looked into, by the authorities while passing statutory orders, that exercise having not been done, the orders impugned deserves to be set aside.
5. Learned Counsel for the applicant had further submitted that the main reason assigned by the applicant to remain unauthorisedly absent was that he was entrusted with a duty of exchange of mail bags at Haveri Bus stand point. But some bad elements supported by some politicians started troubling him, they started stealing the bags, the applicant requested the authorities to change his duties, but no action was taken, which had affected the health condition of the applicant compellin compelling him to remain absent to duties. The same was not appreciated by the authorities.
6. Learned Counsel Shri S.Prakash Shetty representing the respondents referring to the reply statement filed on behalf of the respondents argued that the applicant had re remained absent from duty for different spells earlier also, for which the absent period has been treated as dies-non.
non. He has been awarded punishment of Censure by the competent authority. The details of which are as under: 6 OA No.103/2022
Sl. Period No. of Treated as Dies-non vide No. From To days 1 04.12.2001 17.12.2011 14 Asst. Director (S&R) O/o Postmaster General N.K.Region, Dharwad memo No.NKR/STA-
5/549/2002 dated
22.01.2002.
2 05.06.2002 21.06.2002 17 Asst. Director (S&R) O/o
Postmaster General
N.K.Region, Dharwad
memo No.NKR/STA-
5/549/2002 dated
03.07.2002.
3 04.12.2002 31.03.2003 118 Accounts officer, ICO(SB)
O/o PMG, N.K.Region,
Dharwad, memo
No.NKR/IC(SB)8-50/PBB
dated 21.04.2003.
4 10.07.2012 11.02.2013 217 PM Haveri HO memo
No.H2/B-3/PF/PBB/13
dated 12.02.2013.
5 12.02.2013 08.12.2013 300 PM Haveri HO memo
No.H2/B-3/PF/PBB/13
dated 17.12.2013.
7. While working as MTS Haveri, the applicant remained absent from 01.12.2014. Postmaster Haveri HO issued a notice vide letter dated 18.12.2014 directing the applicant to join duty immediately. The applicant neither joined duty nor replied to the notice. Hence Disciplinary proceedings were initiated by the Postmaster, Haveri. Investigating officer held the preliminary inquiry on 13.08.2016, but the applicant did 7 OA No.103/2022 not attend the inquiry. In order to provide reasonable opportunity to the applicant, the preliminary inquiry was once again held on 22.08.2016.
The applicant attended preliminary hearing and admitted the charge levelled against him. Hence Inquiry Officer concluded the inquiry and submitted inquiry report. Copy of the inquiry report was ha handed over to the applicant, but no representation was submitted to the same. The inquiry report was forwarded to the disciplinary authority authority-Respondent No.4. Accordingly, the penalty of removal from service was issued for the proved misconduct. The appeal appeal and revision filed against the penalty order being rejected, the same being in conformity with law, application deserves to be dismissed.
8. We have carefully considered the submissions made by the learned Counsel for the parties and perused the ma material on record.
9. The applicant had admitted the charge of unauthorised absence levelled against him. The only reason assigned for the unauthorised absence was his ill-health, ill before the disciplinary authority.
Even before the Appellate Authority, the same ground was urged. However, for the first time before the Revision Revisional Authority interference of 8 OA No.103/2022 some bad elements under the political pressure of stealing mail bags, was averred. The Revisional Authority considering these aspects has given a finding that the statement of the applicant that the bad elements supported by some of politicians interfered with his work stealing mail bags, as false, as there was no loss of bags bags reported in the year 2009 2009-2010 till the date of passing of the order in Haveri Division. No convincing reply was given by the applicant during the personal hearing as recorded by the Revisional Authority. The applicant had admitted the charge levelled against him without any demur or protest; no reply was given to the notice issued by the Post Master, Haveri dated 18.12.2014 no representation was given pursuant to the inquiry report. Stealing of mail bags is not supported by any evidence as such it could be inferred that the unauthorised absence from duty was wilful as no application made or prior permission was was taken to remain absent. In the case of Krushnakant B Parma referred to supra, the Hon'ble Apex Court has ruled as under:
"18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, 9 OA No.103/2022 including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary Authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct."
10. The eventualities of compelling circumstances mentioned by the Hon'ble Apex Court are not found in the present case. Even the ground of illness averred by the applicant is not supported by any substantial evidence. It is true that removal of service for unauthorised absence from duty is a major punishment and cann cannot be inflicted without following the procedure as established by law. In the present case, the charge sheet gave the fullest particulars and evidence that the applicant had to meet. The notice was also issued, but he did not reply, hence the disciplinary nary proceedings was initiated under Rule 14 of CCS (CCA) Rules, 1965 vide memo dated 17.09.2015 with the following charge: 10 OA No.103/2022
"ARTICLE-II That, Sri P.B.Bhajantri, while working as MTS, Haveri HO for the period from 08.06.1992, remained absent to his duties unauthorisedly from 01.12.2014 to this day and failed to maintain devotion to duty as required by him under Rule Rule-
3(1)(ii) of CCS (Conduct) Rules-1964."
Rules 1964."
The Inquiry Officer was appointed. The applicant admitted the charge of unauthorised absence.
absence. Accordingly, Inquiry Officer submitted the report holding that the charge levelled against the applicant as proved. In furtherance to the inquiry report no representation was submitted by the applicant.
11. The applicant joined duty on 15.12.2 15.12.2015 and worked for a short spell up to 31.12.2015 and thereafter again remained absent unauthorisedly. The subsequent letter dated 21.06.2016 issued by the Postmaster, Haveri HO calling the applicant to attend to duty also remained unresponded. Hence the Disciplinary Authority accepting the inquiry report has passed the penalty order removing the applicant from service.
11 OA No.103/2022
12. It is beneficial to refer to the judgment of the Hon'ble Apex Court in the case of State of Punjab vs. Dr.P.L.Singla reported in (2008) 8 SCC 469, 469, wherein the Hon'ble Apex Court has held thus:
"11.. Unauthorized absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the 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 unauthorized absence as a misconduct, hold aan n enquiry and impose a punishment for the misconduct.
12. An employee who remains unauthorisedly absent for some period (or who overstays the period of leave), on reporting back to duty, may apply for condonation of the absence by offering an explanation for such unauthorized absence and seek grant of leave for that period. If the employer is satisfied that there was sufficient cause or justification for the unauthorized absence (or the overstay after expiry of leave), the employer may condone the act of indiscipline and sanction leave post facto. If leave is so sanctioned and the unauthorized absence is condoned, it will not be open to the employer to thereafter initiate disciplinary proceedings in regard to the said misconduct unless it had, while sancti sanctioning oning 12 OA No.103/2022 leave, reserved the right to take disciplinary action in regard to the act of indiscipline.
13. We may note here that a request for condoning the absence may be favourably considered where the unauthorized absence is of a few days or a few months aand nd the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorized absences are not usually condoned. In fact in Security services where discipline is of utmost importance, even a few of day dayss overstay is viewed very seriously. Be that as it may.
14. Where the employee who is unauthorizedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of withholding penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal removal,, it may not be necessary to pass any consequential orders relating to the period of unauthorized absence (unless the rules require otherwise). Where the punishment awarded for the unauthorized absence, does not result in severance of employment and the 13 OA No.103/2022 employee ployee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorized absence remains unaccounted, it will result in break in service, vice, thereby affecting the seniority, pension, pay etc., of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment.
punishment."
13. In V.Ramana vs. A.P.S.R.T.C' A.P.S.R.T.C's case reported in (2005) 7 SCC 338,, the Hon'ble Apex Court has held thus:
"11. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision decision-making making process and not the decision.14 OA No.103/2022
12. To put differently unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed."
imposed.
14. In the light of these judgments, w we do not find any infirmity or irregularity in the order order passed by the Appellate Authority. In our considered view, the Appellate Authority has rightly exercised the power under Rule 27 of the Rules and rejected the appeal. The parameter parameters laid down in Rule 27 has been considered and on application of mind the appeal is rejected by passing a speaking order. Similarly, Revisional Authority has judiciously taken a decision in rejecting the revision petition assigning valid reason, which cannot be found fault with. The past history of the applicant would indicate that he was a habitually unauthorised authorised absentee and had suffered minor penalty in the earlier proceedings. Going on unauthorised leave is surely a misconduct and is a 15 OA No.103/2022 valid ground for termination of job. Thus we find no merit in the application. Accordingly, application stands dismissed.
No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.