Central Administrative Tribunal - Delhi
Ms. Ancy Roy vs The Chief Secretary on 28 February, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.351/2013 Order Reserved on 30.01.2013 Order Pronounced on: 28.02.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Ms. Ancy Roy W/o Roy Joseph R/o Moolakkattu, Reena Villa, MKM Road, Piravom P.O. Ernakulam District, Kerala State. -Applicant (By Advocate: Shri N.A. Sabastian) Versus 1. The Chief Secretary, Govt. of NCT of Delhi, Delhi Government Secretariat, New Delhi-110002. 2. The Principal Secretary, Dept. of Health & Family Welfare, Govt. of NCT of Delhi, Delhi Government Secretariat, New Delhi-110002. -Respondents O R D E R
Honble Mr. Sudhir Kumar, Member (A) The applicant has approached this Tribunal in this OA praying for the OA to be allowed and the order dated 21.09.2012 (Annexure P-1) passed by the Principal Secretary, Health and Family Welfare of Govt. of NCT of Delhi (GNCTD, in short) to be quashed, and for directing the respondents to post the applicant in any of the hospitals of the Respondent No.2, and to pay her the wages from 01.05.1998 till the date of such posting now claimed and to pass any further orders.
2. The arguments of the learned counsel for the applicant were heard at the stage of admission for the purpose of issuance of notice itself, and orders were reserved on the point of admittance for the purpose of issuance of notice.
3. The applicant had earlier approached this Tribunal in OA No.1688/2012 in which oral orders were passed on 17.05.2012, again at the stage of admission for the purpose of issuance of notice itself, directing the respondents to take a final decision in case of the applicant and communicate the same to her at the earliest.
4. The admitted facts in this case are that the applicant was appointed as a Staff Nurse and joined service at the Institute of Human Behaviour and Allied Sciences (IHBAS) w.e.f. 01.07.1991, where she worked till 20.04.1998, when she was ordered to be repatriated to the Technical Recruitment Cell (TRC, in short) of the GNCTD, where she reported for duty on 01.05.1998 through Annexure P-2. Four days thereafter, since she was suffering from fever and vomitting, and doctor had advised her to take rest, she applied for leave w.e.f. 05.05.1998, attaching a medical certificate therewith through Annexure P-3. Through Annexure P-4, Medical Certificate issued by Doctor-Incharge, and countersigned by the Medical Superintendent of the IHBAS, G.T. Road, Shahdara, Delhi, the applicant has tried to prove that she was under treatment in that hospital for illness from 05.05.1998 to 11.05.1998, for a period of 7 days.
5. The applicants case is that thereafter she was in receipt of a Telegram from her husband on 11.05.1998 through Annexure P-5, asking her to return to her native place in Kerala, as her father was sick, with the Telegram stating Father sick come immediately Roy. At the same time, the very next day, through Annexure P-6, she was issued a Fitness Certificate on 12.05.1998, stating that she had improved sufficiently, and can join her normal duties w.e.f. 12.05.1998. However, she proceeded to Kerala on 12.05.1998 itself, instead of joining her duties. In her pleadings, as made in the earlier OA No.1688/2012 also, and considered by the concurrent Bench, including one of us (Sudhir Kumar, Member (A)), it was claimed by the applicant that in September 1998, she had returned to Delhi, and had met the officials of the TRC, but that they had not given her a posting.
6. 13 years after that, she made a representation dated 26.08.2011, praying for permission to join duties as Staff Nurse, which was replied to by the respondents through U.O. No.F.100/TO/ANSDNS/ 2009/9464 dated 27.07.2011, asking her to submit all the certified copies of the relevant records regarding all types of leave sanctioned to her by TRC, and further directing her to clarify as to why she has not attended the TRC regularly after availing the above said sanctioned leave. To this, she replied through her letter dated 26.08.2011 (Annexure P-7 of the present OA) claiming that she had neither received any confirmation or reply from TRC approving or sanctioning or refusing to grant her the leave, nor was she given a posting by the officers of TRC, and since her husband was in Kerala, and she was being harassed in Delhi beyond limits, without being allowed to join her duties, she could not follow up the matter further, and had returned to Kerala. She has claimed in this letter that she is still a Government servant, and not even a memo, show cause notice, or a charge-sheet has been issued to her till date, and that the action of the TRC in not allowing her to join her duties is against the Rules, and amounts to further harassment. She had, therefore, prayed that she be provided duties in any of the hospitals, and be permitted to join her duty without any further delay. This letter was posted by her, addressed to the Superintendent (TRC), GNCTD, Delhi Secretariat, from the GTB Hospital, New Delhi Post Office through Speed Post on 27.08.2011, as per Annexure P-7.
7. Later on, it was followed by another representation dated 29.08.2011 (Annexure P-8) addressed by her husband Mr. Roy Joseph, addressed to the Honble Minister for Health and Family Welfare, GNCTD, New Delhi. In this, her husband had claimed that when she had reported for duty to the TRC, she was asked to work as PA to one of the senior officers at the TRC, where she was harassed, and since her request for posting as a Staff Nurse was not accepted, and because of her harassment, she had applied for leave, and came to Kerala, as she was sick and her father was also sick, where she remained for sometime. It was claimed by her husband that she did apply for extension of leave also on account of the continuous harassment. She came to Delhi repeatedly in 2010 and 2011 and approached the TRC for a posting. It was claimed that his wife, the applicant, is still in the services of the Health and Family Welfare Department of the GNCTD, as TRC has not stated the reasons why she has not been provided the duties. In support of their having visited the Delhi Government Secretariat, the applicant has annexed at Annexure P/9 colly. the entry passes issued to her husband on 18.04.2011, 07.09.2011, 12.09.2011, 04.10.2011, 23.04.2012 and on 24.04.2012 for both her husband and the applicant also. The applicant has not produced any copies of any representations or leave applications made by her to the respondents prior to the representation dated 26.08.2011, and the applicants husbands representation dated 29.08.2011, about which only averments have been made in paragraph-4 (F) of the OA.
8. It has also been submitted as per para-4 (J) of the present OA that after the order dated 17.05.2012 had been passed in the applicants earlier OA No.1688/2012, and the respondents had not passed an order within a period of two months from the date of receipt of a copy of that order, a legal notice of contempt dated 22.08.2012 had also been served upon the respondents by the applicant. It has been submitted that the impugned order dated 21.09.2012 was received by the applicant at her home town in Kerala on 25.09.2012.
9. The applicant has taken the ground for claiming relief that the actions of the respondents have violated her Fundamental Rights and that they have acted illegally, arbitrarily, unjustifiably and inequitably. She has taken the further ground that the respondents cannot be allowed to state that the records for the period 1998 onwards were not accessible in their office, and that the same were not maintained properly, while the respondents were duty-bound to maintain the same. She has taken the further ground that the burden of proving that she had been sanctioned leave for the period from 5.5.1998 to 11.5.1998 (as per the certificate at Annexure P/4), and beyond, cannot be placed on the shoulders of the applicant. She has further submitted that the applicant had not abandoned the services of the respondents, and it was incumbent upon the respondents to call upon the applicant to join her duties, and to take out advertisements in this connection in the newspapers, and only then they could have taken action to terminate the services of the applicant as per law, and it is an admitted case that no such steps were taken by them in so far as the applicant is concerned.
10. She has further submitted that in the impugned order the respondents have placed undue reliance on the certificate produced by her, which was issued by the Secretary of her village Gram Panchyat in Kerala, stating that she was residing in her village in Kerala from 15.05.1998 to the date of issuance of the certificate on 18.10.2011, and that as per their record her name was registered in the Electoral Register as a voter also, because such a certificate was specifically issued on the request of the applicant only, in order for her to be able to show that she had not proceeded abroad in between this period, as is the normal course and practice in case of staff nurses abandoning Government services, and that the said document produced by her cannot be read against the applicant herself.
11. The applicant has taken the further ground that in the absence of any proof or evidence from the side of the respondents that they had called upon her to join her duties, or that they had initiated steps for termination of her services, the only conclusion that can be drawn is that the version put-forth by the applicant, that she has approached the respondents on a number of occasions from 11.9.1998 to 12.05.2011 is true and correct. It was further submitted that the respondents have further erred in relying upon the provisions of the Delhi Nursing Council Act, 1997, which came into force only in the year 2000. It was submitted that when the respondents have admittedly appointed her and availed of her services for more than 07 years, that they cannot now contend that she is a non-qualified person, as her registration with the Punjab Nursing Council is valid for life. In the result, it has been prayed that the OA deserves to be allowed.
12. Heard the learned counsel for the applicant on the point of admission for the purpose of issuance of notices. We are not convinced that this is a case worth taking the trouble of issuing a notice. The applicant had remained absent for 13 years in an unexplained manner from 11.05.1998 to sometime in 2011, which has been claimed wrongly by her to be from 11.09.1998, and has, in a sense, even accepted by the respondents, but in the absence of any order of sanction of leave to her for the period from 05.05.1998 onwards, her absence cannot but be treated as unauthorized absence.
13. It is clear that the applicant had never performed any duties with the respondents after 4.5.1998. It is also clear that throughout this period of more than 13 years thereafter, she was residing in her own village, as per the documents produced by her. The respondents have, in the impugned order, cited the decision of the Honble Apex Court in C. Jacob v. Director of Geology & Mining & Another, AIR 2009 SC 264=(2008) 10 SCC 115, and in particular reproduced para-9 of that judgment to deny the claim of the applicant. Further, in the case of North Eastern Karnataka Road Transport Corporation v. Ashappa, AIR 2006 SC 2164= (2006) 5 SCC 137, the Honble Apex Court has further held that willful absence or abdication of ones duty without proper sanction of leave can be a valid ground for termination of services of the concerned employee. Here, in the instant case, even though the documents (Annexure P/4) show that she was recommended only 07 days medical leave w.e.f. 5.5.1998 to 11.05.1998, the respondents have been kind enough to her in having accepted that she was on leave till 11.09.1998 also, which was not borne out otherwise from the records as produced by the applicant either in the OA-1688/2012 earlier, or in the present OA. Or it could be a typographical error on the part of both, the correct date being 11.05.1998 and not 11.09.1998.
14. The applicant has also not produced copies of even a single letter, addressed by her from 1998 onwards up to 2011. If she does not want either the respondents or this Tribunal to rely on the certificate issued by her village Gram Panchyat Secretary, which has been produced by her, and relied upon by the respondents in the impugned order, we can only suspect that the certificate itself was obtained by her in an improper manner, and she would then be open to accusation of having gone abroad, to serve as a nursing employee abroad, about which the respondents have not mentioned, but the applicant herself has mentioned in the OA as being the normal practice among similarly placed nursing employees.
15. We are bound by the Honble Apex Courts observations in the case of D.C.S. Negi v. Union of India & Ors., SLP (Civil) No.7956/2011 with C.C. No.3709/2011 decided on 11.03.2011, and this Tribunal is duty bound to first consider the aspect of delay. Further, it has been held by the Honble Apex Court in a catena of cases that delay disentitles the party to discretionary relief from the Court. Discretion was first exercised by this Tribunal in the applicants favour on 17.05.2012 while disposing off her first OA No.1688/2012, when the complete facts from the respondents side were not available before us. But now that the picture is clear that the applicant has not even applied for the sanction of any kind of leave, or even addressed any representations to the respondents for uncontroverted period of 13 long years, this abandonment of her service by her of her own volition followed by the long delay in again appearing before her employers, certainly disentitles her to a second discretionary relief from this Tribunal, in the light of the Honble Apex Court judgment in C. Jacobs case (supra), cited by the respondents.
16. We are, therefore, convinced that the applicant has miserably failed to make out a case for us to provide any relief to her, and to point out any legal defect in the impugned order (Annexure P/1). Therefore, the OA does not appear to be a case fit for even issuance of notices, and is dismissed at the stage of admission itself, without issuing notices to the respondents, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.