Central Administrative Tribunal - Delhi
Ishwar Singh S/O Sh. Ram Mehar vs M.C.D. Through on 3 January, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.1975/2011 New Delhi this the 3rd day of January, 2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Ishwar Singh S/o Sh. Ram Mehar, R/o Vill. Khera Dabar, PO Ujwa, Police Station Najafgarh, New Delhi-43. ..Applicant (By Advocate Shri Shrigopal Aggarwal() Versus 1. M.C.D. through Commissioner, Town Hall, Chandni Chowk, Delhi-06. 2. Addl. Commissioner, Town Hall, Chandni Chowk, Delhi-06. 3. Director (Vig.), MCD Vigilance Deptt., 16, Rajpur Road, Civil Lines, Delhi-54. -Respondents (By Advocate Shri Rajinder Khatter) O R D E R (ORAL) Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
i) To set aside the impugned orders as per detail given in Annexure A-1.
ii) That the punishment awarded is severe and harsh enough and that it does not commensurate with the misconduct/charges.
iii) To direct the respondents to re-instate the services of the applicant with all consequential reliefs [i.e. with back wages from the date of removal of his services etc.], plus interest @18% p.a. on the arrears of pay till the date of final payment.
iv) to grant any other relief which this Honble Tribunal deems fit under the facts and circumstances of the case.
To allow costs of the litigation.
2. Briefly stated, facts of the case are that the applicant, while working as peon with the respondents, was transferred and posted vide order dated 16.10.2003 and was directed to report to MO/Incharge, Jhandewalan Homeopathic Dispensary vide office order dated 24.10.2003. But instead of joining there, applicant remained unauthorizedly absent w.e.f. 25.10.1993 without any information or sanction of leave from the competent authority. He submitted applications on 4.5.2005 and 18.7.2005 in which he promised to perform his duty sincerely, but he failed to do so. Applicant was also issued 5 call back memos to join duty immediately on 17.6.2006, 31.3.2006, 23.2.2006, 12.7.2005 and 15.6.2005, still he did not join his duty and remained unauthorizedly absent from duty. On the basis of the aforesaid allegations memorandum of charge-sheet dated 15.01.2007 was issued to the applicant along with statement of charges, statement of allegations, list of witnesses and list of documents for having contravened Rule 3 (1) (ii) & (iii) of CCS (Conduct) Rules, 1964 as made applicable to the employees of the MCD for his gross misconduct and also that the applicant has failed to maintain absolute devotion to duty. Applicant was given reasonable opportunity to defend his case and ultimately the enquiry officer (EO) submitted its report holding the charge proved. A copy of the report of the EO was also given to the applicant but he did not file reply. The disciplinary authority (DA) after considering the facts of the case, memorandum of charge-sheet and the documents available on record imposed the punishment of removal from service under Rule 6 (vi) of the Delhi Municipal Corporation Services (Control & Appeal) Regulations, 1959. Applicant filed an appeal before the appellate authority. The appellate authority after giving personal hearing to the applicant vide order dated 23.12.2010 dismissed the appeal of the applicant and upheld the punishment of removal from service. It is these orders, which are under challenge in this OA. Applicant has challenged the finding given by the EO and the orders passed by the authorities on the ground that a copy of the enquiry report was not made available to the applicant, the competent authorities have not applied their mind while imposing the punishment and that before imposing penalty a show cause notice should have been issued to the applicant.
3. Notice of this Application was given to the respondents. Respondents have filed their reply wherein respondents have categorically stated that the applicant remained absent w.e.f. October, 2003 to May, 2006, i.e., for a total of 801 days. Respondents have further stated that in the past also departmental case was initiated against the applicant for absenting himself from duty. Charge was proved and a penalty of stoppage of two increments with cumulative effect was imposed. Respondents have categorically stated that notice of the enquiry was given to the applicant on 17.4.2007 to appear on 24.05.2007 at 11.00 AM and in all out of 25 days fixed for the enquiry applicant had attended enquiry only six times and remained absent on 19 occasions. The details particulars regarding his presence and absent during the period w.e.f. 24.05.2007 to 09.09.2009 have been detailed in the reply-affidavit. Thus, according to the respondents full reasonable opportunity was given to the applicant to defend his case but the applicant remained absent on most of the dates fixed for the purpose of enquiry and also that he did not even file written arguments before the EO and thus the EO finally closed the case and submitted its enquiry report. Respondents have categorically stated that copy of the enquiry report was sent to the applicant through registered post at his residential address available with the Department, but he did not submit any representation/submission before the DA. Thus, according to the respondents enquiry was held as per the Rules and no principle of natural justice has been violated by the respondents. Respondents have also stated that the DA and appellate authority have acted independently and passed reasoned and speaking orders after going through the charge-sheet, documents available on record and evidences adduced during the enquiry. Regarding non-examination of the applicant by the EO, respondents have placed reliance upon the decision of the Apex Court in the case of Sushil Kumar Banerjee v. State of West Bengal & Ors., (1980) 3 SCC 304, whereby the Apex Court while interpreting Rule 9 (21) of Railway Servants (Discipline & Appeal) Rules, 1968, held that mere failure to comply with such a rule does not ipso facto lead to the departmental enquiry being vitiated. In addition to non-compliance, what is to be shown by the delinquent office is prejudice caused to him. Admittedly, in this case applicant has not shown as to what prejudice has been caused to him while not examining him by the EO. Respondents have further stated that the Tribunal has got limited jurisdiction to go into the correctness of the charges and the Tribunal cannot act as an appellate authority on the orders passed by the DA as well as the appellate authority.
4. Applicant has not filed any rejoinder, as such the allegations leveled by the respondents in the reply remain un-controverted.
5. We have heard the learned counsel of the parties and gone through the material placed on record. It goes without saying that the applicant remained absent for more than 3 years. He was asked time and again to join duties and for that purpose 5 call back memos were issued to the applicant vide memorandum dated 17.6.2006, 31.3.2006, 23.2.2006, 12.7.2005, 15.6.2005. Despite this applicant did not join his duty and still remained absent unauthorizedly from duty. Thus the respondents have no option but to issue charge-sheet to the applicant, which was issued to the applicant on 15.01.2007 after a lapse of considerable period and after giving due opportunity to the applicant to join duty. There are hardly any medical certificate placed on record to justify his unauthorized absence, rather from the material placed on record it is clear that applicant remained absent from duty w.e.f. 25.10.2003 but he has submitted applications on 4.5.2005 and 18.7.2005, in which he promised to perform his duty sincerely. Despite this undertaking given by the applicant in his aforesaid applications, applicant did not join duty which led to issuance of 05 call back memo to the applicant to join duties. Thus, in view of these peculiar facts and circumstances of the case even if there is some violation of principles of natural justice, though from the material placed on record it reveals that there is no such violation, admitted facts of absence of applicant is borne out from the record and in such a situation according to us any violation of the principle of natural justice would not have made any difference at all, as the applicant himself has admitted the factum of his absence from duty without any valid explanation and without any information or sanction of leave from the competent authority. Under these circumstances, we are of the firm view that the charge against the applicant of his absence from duty stands fully proved and it cannot be said that the orders passed by the DA, as upheld by the appellate authority for imposing punishment is without basis.
6. However, from the material placed on record, it is evident that the services of the applicant were regularized as peon on 1.4.1982. Applicant has put in more than 20 years of service with the respondents. Although from material placed on record it is evident that in the past also applicant had remained absent from duty for which he was imposed a penalty of stoppage of two increments with cumulative effect and also remained continuously absent w.e.f. 15.10.2003 for a period of more than 3 years when charge-sheet was issued to the applicant on 15.01.2007, this fact conclusively proves that applicant is an unwilling worker and such a person cannot be reinstated in service, but as already stated above, since the applicant has put in more than 20 years of service with the respondents, we are of the view that removal from service of applicant has caused great hardship to applicant, as he will not be entitled to pensionary benefits. The fact that applicant has put in 20 years of service and on account of removal from service he will be deprived of his pensionary benefits has not been considered at all either by the DA or by the appellate authority, as can be seen from the reasons recorded in the impugned orders. Thus, in the peculiar facts and circumstances of the case and more particularly that it is not a case of such nature where the applicant is guilty of financial embezzlement or disproportionate assets etc., we are of the view that it will be in interest of justice if the matter is remitted back to the appellate authority to re-consider the matter on the quantum of punishment without re-instating applicant in service so that he can earn pensionary benefits and pass appropriate orders.
7. Accordingly, OA is allowed to the aforesaid extent and the matter is remitted back to the appellate authority to pass fresh appropriate order, keeping in view the aforesaid observations made by us, within a period of 3 months from the date of receipt of a copy of this order. No costs.
(Mrs. Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.