Central Administrative Tribunal - Delhi
Ms. Nisha Priya Bhatia D/O T. N. Bhatia vs Union Of India on 11 May, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.3613 of 2011 Order reserved on : 3rd May, 2012 Pronounced on : 11th May, 2012 HONBLE SHRI JUSTICE S. C. SHARMA, ACTING CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Ms. Nisha Priya Bhatia D/o T. N. Bhatia, R/o I-263, Naraina, New Delhi-110028. Applicant ( In person ) Versus Union of India, Cabinet Secretariat, C/o Secretary (R), Research & analysis Wing, Room No.7, Bikaner House Annexe, Shahjahan Road, New Delhi-110011. Respondents ( By Shri Sudhir Walia, Advocate ) O R D E R Justice S. C. Sharma, Acting Chairman:
Instant Original Application has been instituted for the following reliefs:
(A) Forbear the Respondent from proceeding against the Applicant in any manner on its allegation that she was unauthorizedly absent from 29.08.08 26.11.09 in view of its failure to comply with the order dtd. 28.04.11 of this Honble Tribunal in OAs No.1665/10 & 1967/10.
(B) Direct that in view of (i) its failure to comply with the order dtd. 28.04.11 of this Honble Tribunal in OAs No.1965/10 & 1967/10; (ii) the findings in 18 pages of the report of enquiry into the Applicants complaint on sexual harassment supplied to her vide order dtd. 04.07.11 of the Honble Supreme Court in SLP(C) No.1257/10 and (iii) the material on record, the Respondent must drop recovery claims from the Applicants pension made vide its order n.2/20/92-Pers.5-8681 dtd 10.05.10 and immediately regularize the period of Applicants alleged unauthorized absence from duty thereby upholding that the Applicant had not been absent from duty of her own volition but was prevented from attending office by the Respondent through criminal intimidation & wrongful restraint.
(C) Direct the Respondent to reimburse the cost of litigation to the Applicant and to also compensate her financially for wrongful restraint imposed upon her from attending office and for the intense mental, emotional & psychological stress that it has consequently brought upon her for an unduly long period of time despite her outstanding record of service a fact that it does not dispute.
(D) Issue any other such order that it may kindly consider appropriate.
2. Pleadings of the parties may be summarized as follows:
It has been alleged by the applicant that she was a 1987 batch Class I Executive cadre officer in the Cabinet Secretariat (SW), also called the R&AW. She was compulsorily retired from service on 18.12.2009 in the backdrop of her complaint of 2007 on sexual exploitation of women employees in the R&AW. When the said complaint was made by the applicant, she was second-in-command of her departments training institution in Gurgaon for four years. She had been living on the campus of the very institute in a government accommodation allotted to her. Earlier, two Original Applications (OA Nos.1665/2010 and 1967/2010) were filed by the applicant, which were disposed of by the Tribunal after clubbing, vide order dated 28.04.2011 (Annexure A-1). Certain directions were given to the respondents in the order dated 28.04.2011. It is the case of the applicant that in the backdrop of the two OAs, the applicant was compulsorily retired on 18.12.2009 under special rule 135 of her service, and as per rules pension was due to her, but yet even after expiry of two years, the respondents have not finalized the applicants pension. Only provisional pension was sanctioned to the applicant alleging that final pension was withheld because the applicant was unauthorizedly absent from duty from 29.08.2009 to 26.11.2009. Prior to the order dated 10.05.2010 (Annexure A-2) provisionally fixing the pension of the applicant, the respondents made this allegation on two earlier occasions as well, and the applicant disputed the same. That the respondents never acknowledged the applicants representation. Even before the respondents began to question her alleged absence from duty, the applicant had been sending out many letters/telegrams resolutely and repeatedly contending that on 29.08.2008, her office premises were criminally trespassed/sealed and that she had been criminally intimidated and wrongfully restrained from discharging her duties. The complaint was made with the Delhi Police. No response was received of the letters written by the applicant. There was complete indifferent attitude on the part of Delhi Police to the complaints of the applicant. That after filing OA No.1665/2010, the applicant for the first time since 29.08.2008 came to know that the respondent had taken cognizance of the matter, and denied that the applicant was criminally intimidated or wrongfully restrained. The memo advised the applicant to apply for leave in case she wanted the period of her alleged absence to be regularized, otherwise the period of absence would be declared as dies non under FR-17, and thereafter another OA No.1967/2010 was filed by the applicant. Both the OAs were decided with the direction to the respondents to regularize the period of applicants alleged unauthorized absence, or to issue a definite charge sheet to her giving full opportunity to defend herself, and then decide the period in accordance with law. As per directions of the Tribunal, the enquiry ought to have been completed within four months from the date of receipt of its order, subject to co-operation of the applicant. It is alleged that for the last more than five months, the respondents have completely ignored the directions of the Tribunal. The respondents have neither regularized the period of the applicants alleged unauthorized absence from 29.08.2008 to 26.11.2009 nor have then issued any charge sheet to her to decide the matter in accordance with law. It has also been alleged that the applicant was not absent of her volition but was prevented from attending office by those in R&AW against whom she had complained, and who criminally intimidated and wrongfully restrained her, and that the applicant cannot be permitted to wait endlessly to settle the matter. On 26.10.2007, a complaint was made by the applicant to the competent authority on the subject of sexual exploitation of women employees in the R&AW, indifference and involvement of Secretary (R) Shri Ashok Chaturvedi. It is further alleged that there was no end to the applicants woes as her acute harassment within the R&AW commenced, as Shri Ashok Chaturvedi obtained a letter dated 26.11.2007 from a doctor at AIIMS which suggested presence of a psychiatric illness in the applicant. It is further alleged that Shri Chaturvedi propagated that the applicant was mentally unstable and that she was guilty of insubordination and many other acts of misconduct, and that delegations of lady officers from the department were sent to the matrimonial home of the applicants younger sister to announce that the applicant had dared to complain against big bosses and that she was mentally unstable. The applicant also approached the PMO, National Commission for Women, National Human Rights Commission, and police, but none cared to pay attention to the complaint of the applicant due to involvement of Shri Chaturvedi who propagated that she was mentally unstable. In response to an RTI application by the applicant, a letter dated 20.04.2010 was addressed to the applicant in which it had been alleged that as per Shri M. K. Sharma, Joint Secretary, R&AW, an FIR had been filed against the applicant for harassing colleagues, destruction of government property and obstruction of work, and that CCTVs had been installed around the residence of the applicant to keep a check on her movements as she had in the past tried to commit suicide in front of the PMs Office. Several allegations in detail have been made against Shri Ashok Chaturvedi and other officers of R&AW. Enquiry was also conducted against the applicant. The contents of the enquiry report have also been alleged in the pleadings, which would not be necessary for the purpose of this OA to be narrated. It was specifically stated that the applicant never remained absent; rather she was not permitted to enter into the office and her identity card was not being renewed even though she had applied for it in routine course in July, 2008 itself, and that the respondents allegations as regards the alleged unauthorized absence of the applicant from duty are baseless, as would be evident from the fact that the respondents were themselves not sure of the period of her absence. Vide order dated 10.05.2010 provisional pension of the applicant was sanctioned, and the period of absence was mentioned to be from 29.08.2008 to 26.11.2009. However, in the writ petition before the Honble High Court filed for quashing the order of compulsory retirement of the applicant, the period of absence was alleged from 29.08.2008 to 09.06.2009, and there is a difference in both the periods. It is pleaded that it was incumbent on the part of the respondents either to regularize the period of applicants alleged absence or they should have issued a definite charge sheet to the applicant and decide the period of her absence in accordance with law, but they have not done so, hence the OA.
3. The respondents have contested the case by filing their counter affidavit and denied the allegations made in the OA. It has been alleged that the Tribunal vide its order dated 28.04.2011 disposed of two OA Nos.1665/2010 and 1967/2010, and certain directions were given by the Tribunal. The directions which were given by the Tribunal has also been reproduced by the applicant, hence it would not be necessary to repeat the same. However, the directions shall be considered at the relevant place. It has further been alleged that in pursuance of the directions of the Tribunal, the department ordered an in-house enquiry to pin point the period of the absence of the applicant, and later entrusted the matter for enquiry to a Joint Secretary to examine the papers and submit his report. There was no complaint against this officer by the applicant and the officer had remained away from headquarters on various assignments during the period from 21.10.2002 to 13.06.2011. The concerned Joint Secretary examined the voluminous record, including the pleadings in various OAs filed by the applicant and the replies filed by the Union of India in the said proceedings, and after examining the record submitted his report on 29.09.2011, mentioning that out of the total period of unauthorized absence i.e., from 29.08.2009 to 26.11.2009, a short period of 07.04.2009 to 09.06.2009, could be considered as on duty, giving the applicant the benefit of doubt after considering the copy of the attendance register signed by the applicant, her PA and the field officer attached to her. The report submitted by the Joint Secretary was considered by the department and a chargesheet was prepared. However, keeping in view the facts and circumstances of the case, the department had two options, i.e., either to regularize the period of absence by grant of the leave of the kind due and admissible, or to issue a charge-sheet to the applicant after obtaining approval of the disciplinary authority, i.e., the President, under rule 9 of the CCS (Pension) Rules. The department was of the opinion that a lenient view may be taken of the absence of the applicant, particularly in view of the fact that the situation might be causing financial hardship to the applicant, and hence the first option may be adopted subject to the willingness of the applicant to accept it, and a detailed proposal was sent to the competent authority on 24.11.2011 for approval. It is pleaded that the competent authority after examining the pros and cons of the issues involved, conveyed on 27.02.2012 that action, which may be within the competence of the Secretary (R) may be taken in the matter. It has been proposed either to regularize the period of absence of the applicant from 29.08.2008 to 05.04.2009 and from 10.06.2009 to 26.11.2009 (total 390 days), as earned leave of 226 days and remaining by half pay leave, if any, at the credit of the applicant, and the period from 06.04.2009 to 09.06.2009 as duty, or to get the departmental enquiry initiated against the applicant under the relevant pension rules for the period of her unauthorized absence. It is pleaded that the respondents will like to take a lenient view against the applicant, and that if a lenient view is taken by the respondents, then the pension of the applicant will be reviewed as per rule 135 of R&AW (RC&S) Rules. The applicant would have drawn basic pay of Rs.75,700/- (equivalent to HAG+ scale of Rs.75,500-80,000 admissible to DG in IPS Pay Rules) as on 30.04.2023, i.e., her date of superannuation, and based on that she is entitled to a basic pension of Rs.37,850/- (50% of Rs.75,700/-) plus Dearness Relief (DR) thereon w.e.f. 19.12.2009, and this position will continue as long as the period of unauthorized absence is not settled. It is further pleaded that in case this is not acceptable to the applicant and she refuses to get her absence from duty regularized, the respondents will have no option but to conduct disciplinary enquiry against the applicant, and that if an enquiry is held, the matter will be dragged on and the applicant will continue to face hardship, hence the department adopted a lenient view. That in pursuance of the directions of the Tribunal, an in-house enquiry was conducted and the report was submitted on 29.09.2011, and after examining the report, the entire matter was referred for approval to the competent authority, which was received on 27.02.2012 and a decision was taken thereafter by the Secretary (R), hence there had not been any delay on the part of the department in carrying out the directions of the Tribunal dated 28.04.2011. Detailed counter affidavit was also filed later on, and in the detailed counter affidavit also the same facts were alleged. Nothing new has been alleged, accept alleging that the applicant remained on unauthorized absence, and the chargesheet is to be served on the applicant, but the department has adopted a lenient view in the case of the applicant. It has further been alleged that the respondents are prepared to treat the period of absence as child care leave, and in that case the applicant shall have no pecuniary loss, and that already benefit has been given to the applicant of 63 days from 07.04.2009 to 09.06.2009 which has been treated as on duty. That the OA lacks merit and is liable to be dismissed.
4. Although in response to the counter reply of the respondents, on behalf of the applicant no rejoinder affidavit has been filed, but MA No.919/2012 was moved under rule 24 of the CAT (Procedure) Rules to quash the report dated 29.09.2011 against the applicant. It has been alleged by the applicant that this MA may be treated as her rejoinder. Such facts have also been alleged which are not relevant for the purpose of this case, and which we do not think it just and appropriate to mention, because allegations have been made against some Honble Judges of the Honble High Court and members of higher judicial service. If necessary, the relevant facts shall be considered at appropriate place.
5. We have heard Ms. Nisha Priya Bhatia, the applicant, in person, and Shri Sudhir Walia, Advocate, for the respondents, and perused the entire facts of the case. It has been alleged by the applicant that since 1987 she had been working as a Class-I executive cadre officer in the Cabinet Secretariat (SW), also called R&AW, and that she continued to work in that capacity till her compulsory retirement on 18.12.2009. The applicant has also alleged that her problems and troubles started when she made a complaint in the year 2007 regarding sexual exploitation of women employees in the R&AW. She complained of sexual harassment, being the head/second in command of her departments training institute at Gurgaon for four years, and she filed OA Nos.1665/2010 and 1967/2010 before the Tribunal and both the OAs came to be disposed of vide order dated 28.04.2011 by giving certain directions. That after passing the order of compulsory retirement, only provisional pension was granted to the applicant, and it was alleged by the respondents that final pension had been withheld due to unauthorized absence of the applicant from duty from 29.08.2008 to 26.11.2009. Hence, it is the specific case of the respondents that final pension of the applicant has not been settled as she remained unauthorizedly absent from 29.08.2008 to 26.11.2009. However, it has also been alleged by the respondents in the counter reply that a short period from 07.04.2009 to 09.06.2009 could be considered as on duty giving her the benefit of doubt after considering the copy of the attendance register signed by the applicant, her PA and the field officer attached to her, and for the remaining period the applicant shall be considered on unauthorized absence. Under these circumstances, according to the respondents, the period of absence is from 29.08.2008 to 05.04.2009 and from 10.06.2009 to 26.11.2009 (390 days). We are not supposed to decide the veracity and truthfulness of the allegations made in the complaint by the applicant made in the year 2007 regarding sexual exploitation of female employees in R&AW. Certain complaints were made against Shri Ashok Chaturvedi, then Director of R&AW, but we are not concerned with the nature of the complaint made by the applicant against Shri Chaturvedi. What we have to consider is the unauthorized absence of the applicant from 29.08.2008 to 26.11.2009 (minus the short period from 07.04.2009 to 09.06.2009). Much has been argued by the applicant that false and fabricated cases were cooked up against her by the respondents in the backdrop of the complaint made by her. We are also not concerned with the criminal cases registered against the applicant. We have to concentrate only as regards regularization of the period of the unauthorized absence of the applicant, as alleged by the respondents, and as to what would be the factual and legal position regarding regularization of this period of unauthorized absence.
6. It has also been alleged by the applicant that after making the complaint of sexual exploitation of women employees in R&AW, the respondents threatened her of dire consequences, and they did not permit the applicant to enter into the office premises, and that her identity card was also not renewed although she had made application for renewal as usual in routine manner. It has also been alleged by the applicant that she was not absent from duty of her volition but she was prevented from attending the office by those officers in R&AW against whom she had made complaint. It has also been argued by the applicant that she was a Class-I officer and being a Class-I officer, she was not supposed to put her signatures on the attendance register, and that there was no reason for her not to attend the office, as she had been residing on the same premises.
7. Learned counsel for the respondents argued that after the order passed by this Tribunal in OA Nos.1665/2010 and 1967/2010 dated 28.04.2011, there were two options available to the respondents. The first option was either to regularize the period of absence of the applicant by granting her earned leave of 226 days and remaining half pay leave, if any, due at her credit, and the period from 06.04.2009 to 09.06.2009 as spent on duty, or, secondly, the respondents could initiate departmental enquiry against the applicant under the relevant pension rules for the period of her unauthorized absence, but considering the financial hardship of the applicant, the respondents have adopted a lenient view towards the applicant. That the applicant has got two college going daughters also and that the applicant as well her daughters may not be put to any hardship, and hence they ready are and willing to regularize the period of the unauthorized absence provided an application in that regard is moved by the applicant, and that the respondents are also ready to revise the pension of the applicant from the date of her compulsory retirement, i.e., 19.12.2009, as per rules. Undisputedly, at present only provisional pension of Rs.27,770/- plus DR, as admissible, is being paid to the applicant. After regularization of the period of unauthorized absence, the pension of the applicant shall be Rs.37,850/- (50% of Rs.75,700/-) plus DR. To cut short the matter, we enquired from the applicant whether she is ready and willing to accept this offer of the respondents, and whether she is ready to move an application to regularize the period of her unauthorized absence by granting earned leave and other admissible leave. The applicant strongly refuted this offer and stated that she had never been on unauthorized absence, but she was prevented by coercion by the respondents after she made complaint to the high ups of the R&AW, hence no question arises of submitting application for regularization of the said period by granting earned leave and half pay leave, and that the matter may be decided by the Tribunal on merits. As the applicant has strongly turned down the offer of the respondents, hence we proceed to decide the OA on merits.
8. It will be material to state in this connection that two OA Nos.1665/2010 and 1967/2010 were filed by the applicant. Both the OAs were decided on 28.04.2011 by a common order. Annexure A/1 is the copy of the order passed by the Tribunal. The applicant attracted and diverted our attention towards para 29 of the order, which is reproduced, thus:
29. In fact after hearing both the parties, we do feel there are certain spells which are disputed but certain spells could have been regularized by the respondents on their own e.g. in reply respondents have themselves stated that applicant had formally applied for new I-Card on 28.5.2008 which was issued on 10.2.2009, i.e., after a period of over 9.1/2 months. If this time has been taken by the respondents to prepare the I-card and applicant was not allowed to join the office for want of new I-Card, such period cannot be attributed to the applicant for not joining her duties. It also cannot be lost sight of that there are number of representations given by the applicant to the authorities to allow her to resume the work but no reply was given to her. She even had to approach the court for seeking the relief that her I-Card be issued and she be allowed to resume her duties. From above facts there seems to be some truth in the allegations of applicant that she was prevented from joining the duties. However, we hasten to add here that all these facts would have to be decided by the respondents in the first instance. We would like to clarify we have only indicated our tentative view and it should not be taken as a definite finding returned by us. The Tribunal observed that certain spells which were disputed could have been regularized by the respondents on their own, and that the respondents had admitted that the applicant had formally applied for a new identity card on 28.05.2008, which was issued on 10.02.2009, i.e., after a period of over nine and a half months, and that if the respondents had taken so much period in preparing the identity card, and the applicant had not been allowed to join office for want of the identity card, the said period cannot be attributed to the applicant for not joining her duties. This is the positive finding recorded by the Tribunal in favour of the applicant. When a positive finding has been recorded, we are not supposed to record a new finding and substitute the same by our own finding. The principle of res judicata shall be applicable in this case. The earlier matter was regarding unauthorized absence during the said period, and the specific observation was recorded by the Tribunal in favour of the applicant. To some extent, it were the respondents who were responsible for not permitting the applicant to attend the office. The applicant applied for a new identity card on 28.05.2008, i.e., prior to the alleged period of unauthorized absence from 29.08.2008, and the respondents had taken a period of nine and a half months in preparing a new identity card, which was issued to the applicant on 10.02.2009, hence for this lapse it is the respondents who are responsible and this period of alleged unauthorized absence cannot be attributed to the applicant. Certain directions were also issued by the Tribunal. It will be appropriate to reproduce the directions of the Tribunal:
30. In view of above facts, both the OAs can be disposed of by giving following directions:-
(i) Respondents shall first make an effort to regularize such period of alleged absence which occurred due to any delay or inaction on their part in issuing the I-Card or correct posting order or due to any court order etc. They shall also consider the attendance register which is stated to have been signed by the applicant, her PA and the Field Officer attached with her.
(ii) After considering the above facts, if respondents still feel that applicant was unauthorisedly absent for some period, they shall issue definite charge sheet to the applicant, giving her full opportunity to defend herself and then decide the period in accordance with law.
(iii) Respondents shall ensure that none of the officers against whom applicant had filed complaints of sexual harassment or corruption are appointed as Inquiry Officer or Presenting Officer because she has an apprehension, they may be biased against her. This direction has been given because justice should not only be done but seem to have been done also.
(iv) In case respondents decided to initiate the enquiry, it shall be completed within 4 months from the date of receipt of a copy of this order subject to co-operation by the applicant.
(v) We permit the applicant to accept the cheques prepared by the respondents, if not already collected, within 15 days, from the date of receipt of a copy of this order, which shall of course be without prejudice to her rights. Hence, according to the first direction, the respondents were required to make an effort to regularize such period of the alleged absence which could have occurred due to any delay or inaction on their part in issuing the identity card or correct posting order to the applicant, or due to any court order etc. They were also to consider the attendance register. In view of the observations of the Tribunal in the earlier judgment, the period up to 10.02.2009 is to be attributable to the respondents and it cannot be attributed to the applicant, because it were the respondents who had not prepared well within time the new identity card of the applicant, and it is a fact that no one can enter in the premises of the R&AW without bearing an identity card. It has been alleged by the respondents that the applicant was on unauthorized absence from 29.08.2008 to 05.04.2009. We are of the opinion that up to 10.02.2009, it cannot be alleged that the applicant was on unauthorized absence. She had valid reasons for not attending the office for want of valid identity card, and the respondents have not alleged a single word about this fact that they are not responsible for delayed issuance of the identity card to the applicant. Moreover, it is also a fact that as per directions of the Tribunal, the respondents considered the attendance register, which is stated to have been signed by the applicant, her PA and the field officer attached to her. In para 2 of the short counter reply filed on behalf of the respondents, it has been alleged that the Joint Secretary conducted the enquiry and submitted his report on 29.09.2011, and in the said report it was mentioned that out of the total period of unauthorized absence, i.e., from 29.08.2008 to 26.11.2009, a short period from 07.04.2009 to 09.06.2009 could be considered as on duty, giving the applicant the benefit of doubt. Under these circumstances, the period of about 63 days has already been considered as spent on duty. In view of the earlier judgment of the Tribunal, valid reasons were available with the applicant for not attending office up to 10.02.2009. Hence, during this period the applicant cannot be said to unauthorizedly absent.
9. Moreover, it has also been alleged by the applicant that she was not permitted; rather she was intimidated and prevented from entering the office, otherwise there was no reason for her not to attend the office because she had been residing on the same premises. To supplement her argument, the applicant also argued that during this period of alleged unauthorized absence she was regularly paid the salary, and never during the said period she was called upon to explain as to under what circumstances she had remained absent. That these are very strong circumstances in favour of the applicant. Moreover, as is evident from the directions of the Tribunal, particularly direction No.(ii), that it was incumbent upon the respondents that if they felt that the applicant was unauthorisedly absent for some period, they could issue definite charge-sheet to the applicant, giving her full opportunity to defend herself, and then to decide the period in accordance with law. It has been provided in direction No. (iv) that in case the respondents were to decide to initiate the enquiry, it would be completed within four months from the date of receipt of copy of the order of the Tribunal, subject to cooperation of the applicant. It is not the case of the respondents that they initiated the enquiry against the applicant as per directions of the Tribunal, and it was the applicant who had not cooperated in conclusion of the enquiry. Firstly, we have to consider as to whether the respondents, as per the directions of the Tribunal had initiated any enquiry against the applicant, and in case the enquiry was initiated, whether it was completed within a period of four months, as directed by the Tribunal. Immediately after receipt of the copy of the order, the respondents must have initiated the enquiry against the applicant. The respondents have not alleged that they have initiated the enquiry; rather it is the case of the respondents in their counter reply that they adopted a lenient view in favour of the applicant in order to regularize the period of absence by granting her earned leave and half pay leave, and in case the applicant failed to respond to this offer of the respondents, then they would consider to initiate the enquiry. As per directions of the Tribunal in the earlier OAs, these options were not available to the respondents. It was a unilateral act on the part of the respondents to regularize such period of alleged absence which occurred on account of any delay in issuance of the identity card or correct posting order, or due to any court order etc. They have not regularized this period as per directions of the Tribunal, whereas the respondents were required to regularize the period which was attributable to them for the inaction on their part in issuing the identity card. Consent of the applicant was not required in regularizing this period, and the respondents have not acted as per direction No. (i) of the Tribunal. In view of the second direction, if the respondents, after complying with the first direction, still felt that the applicant was unauthorizedly absent for some period, they could issue definite chargesheet to the applicant, and if they were to decide to initiate the enquiry, the same was to be completed within a period of four months. This judgment was delivered by the Tribunal on 28.04.2011. Till date, admittedly, no enquiry has been initiated against the applicant.
10. It has been argued by the learned counsel for the respondents Shri Sudhir Walia that if the applicant is agreeable to the first offer of the respondents and she may move an application for regularization of the period of her unauthorized absence, then the respondents will not conduct the enquiry, but if the applicant turns down this offer of the respondents, then they will think to conduct the disciplinary enquiry. These options were not available to the respondents as per directions of the Tribunal. The respondents were required firstly to consider the regularization of the period of unauthorized absence which was attributable to the respondents due to inaction on their part in preparing the identity card of the applicant. Thereafter, if the respondents still considered that the applicant remained unauthorizedly absent, then they could conduct the enquiry and conclude the same within a period of four months. What to say of concluding the enquiry within four months, the respondents have not even initiated the enquiry all this while, and thus have not complied with the directions of the Tribunal. Now Shri Walia wants permission of the Tribunal to conduct an enquiry in case the applicant refuses to accept the offer of the respondents as regards regularization of the period of her absence. We are of the opinion that we cannot go against the directions given in the earlier OAs. We have to abide by the directions of the Tribunal dated 28.04.2011 and the enquiry should have been initiated after considering such period of alleged absence which could have occurred due to any delay or inaction on the part of the respondents in issuing the identity card, and if the respondents still felt that the applicant was unauthorizedly absent for some period, then they could initiate an enquiry and conclude the same within a period of four months. As the respondents have not initiated and concluded the enquiry within time, then it shows that the respondents have nothing to say to prove the charge that the applicant was on unauthorized absence for the alleged period. Now after a judicial verdict the respondents are not within their rights to conduct an enquiry against the applicant, and they are now estopped from initiating and conducting the enquiry, and we have to presume that it were the respondents who are responsible for the applicant not to attend the office. It is the respondents who created such circumstances and obstacles and problems for the applicant which made it impossible for the applicant to attend the office.
11. Although we have stated above that we are not supposed to decide regarding the truthfulness of the complaint made by the applicant against certain officers of the R&AW, but it is a fact that in the year 2007 the applicant made a complaint against senior officers regarding sexual harassment of women employees in the organization. Annexure A-4 is the copy of the complaint dated 26.10.2007, and we have gone through the contents of the complaint. Serious allegations were made against several officers of the organization regarding sexual exploitation of women employees in the R&AW, and it was also alleged that there was indifference and involvement of Secretary (R) Shri Ashok Chaturvedi. From the documents and from the averments made in the OA, it is evident that such complaint was made and later on, the complaint was investigated and enquired into. It has been argued by the applicant that in the backdrop of the harassment of the applicant and creating problems for her attending the office, is the complaint dated 26.10.2007 against Shri Chaturvedi. We have already stated above that we are not supposed to make comments regarding the truthfulness of the facts, but as a certain complaint was made by the applicant, then it is but natural that the high-ups would be furious with the applicant. From the fact that about nine and a half months were taken in preparing the identity card of the applicant, it is sufficient to draw an inference that to that extent, the respondents have gone to harass the applicant. It has also been alleged by the applicant that Shri Ashok Chaturvedi, Secretary (R) obtained a certificate from a doctor of AIIMS that the applicant was a psychiatric patient. We are not supposed to decide this fact, but these are such facts which have not been disputed by the respondents, and it may be possible that certain certificate was obtained by the respondents from a doctor of AIIMS that the applicant was a psychiatric patient. The applicant has alleged that it has been propagated by Shri Chaturvedi that the applicant was mentally unstable, and the applicant under RTI Act obtained copy of the letter which is Annexure A-6 dated 20.04.2010. This letter was allegedly written on behalf of the Integrated Headquarters of MoD (Army), Addl. Dte. Gen. Discipline & Vigilance, AG/DV-1(P). It has been mentioned in the letter aforesaid, As per Mr NK Sharma, Jt Secretary RAW an FIR has been filed against Mrs. Nisha Priya Bhatia for harassing colleagues, destruction of Govt property and obstruction of work. CCTVs have been installed around her residence to keep a check on her movement as she had in the past, tried co commit suicide in front of the PMs Office. This letter is sufficient to show that how the applicant has been treated in the office after the complaint aforesaid. Prior to 2007, there was no such history of the applicant. All the troubles started after the complaint of 2007. Even an FIR was lodged against the applicant for harassing colleagues, destruction of government property and obstruction of work, and CCTVs had been installed around her residence to keep a check on her movements. We will not be able to comment on these points and it would suffice for us to say that the applicant was not treated properly, and after the complaint aforesaid, the applicant was treated indifferently. We cannot comment about the contents of the FIR lodged against the applicant for harassing her colleagues, destruction of government property etc., and also the contents regarding attempt to commit suicide in front of the PMs Office. This is not a subject matter to be decided in the present case. As we have stated above, we are supposed to concentrate regarding adjudication of the period of unauthorized absence, and it is material to state in this context that as per directions of the Tribunal, the respondents were required to initiate the enquiry after regularization of the period of unauthorized absence and conclude the same within a period of four months from the date of communication of the order. Admittedly, no such enquiry has been initiated and conducted and now in our pinion, the respondents are not entitled and authorized to conduct the enquiry. It shall be presumed in these circumstances and in the scenario of all the facts and circumstances that it were the respondents who created hindrances and obstacles for the applicant in her attending the office. Some of the period can be attributed to the respondents admittedly for not issuing timely new identity card to the applicant, and more than two months period the respondents have already regularized, and in our opinion, considering all the circumstances, the applicant cannot be presumed to have remained unauthorizedly absent. We are also concerned that how and why the respondents are so liberal and have got sympathetic and compassionate approach towards the applicant to offer her to regularize the period of unauthorized absence provided she moves an application in that regard. When the respondents are specific and definite that the applicant remained on unauthorized absence, then there appears no justification to be so lenient towards the applicant. It shows otherwise, and an inference can be drawn otherwise. At no point of time any explanation was called from the applicant as to why she remained unauthorisedly absent, and even after 05.04.2009 no query was made from the applicant, and this fact also shows that the respondents could not dare and could not muster courage to initiate the disciplinary enquiry against the applicant, because the applicant would be provided full opportunity to defend herself in the disciplinary enquiry and the truth will come out in cross examination by her, and due to this reason this via media appears to have been adopted by the respondents. From all the circumstances, we are of the opinion that the applicant was not absent, and it can be presumed, due to inaction on the part of the respondents after the order of the Tribunal, that the applicant was not on unauthorized absence for the period alleged by them, and that it were the respondents who were solely responsible for creating hindrances for her to attend the office.
12. MA No.919/2012 has been moved by the applicant under rule 24 of the CAT (Procedure) Rules to quash the report dated 29.09.2011 for conducting enquiry against the applicant, but no relief has been claimed by the applicant regarding quashing this report dated 29.09.2011, and in the OA relief has only been claimed by the applicant for forebear the respondents from proceeding against the applicant on the application that she was unauthorizedly absent from 29.08.2008 to 26.11.2009, and failure of the respondents to comply with the order dated 28.04.2011, and that the recovery must be dropped which is being made from the applicants pension. It has not been prayed in the OA that the report dated 29.09.2011 be also set aside, hence we will not be within our rights to quash this report. For it, the applicant may adopt other recourses. In this MA, several other facts have also been alleged which are not relevant for the purpose of this case.
13. For the reasons mentioned above, we are of the opinion that as the respondents in pursuance of the order dated 28.04.2011 in OA Nos.1665/2010 and 1967/2010 have not initiated and concluded the enquiry within a period of four months, hence now the respondents are not authorized and entitled to conduct the enquiry against the applicant. Because the respondents have not complied with the order, now they are estopped from conducting enquiry. Moreover, direction No.(i) has also not been complied with by the respondents unilaterally to regularize the period of alleged absence, which occurred due to delay or inaction on their part in issuing the identity card or correct posting order or due to any court order etc. A finding was recorded by the Tribunal in the earlier OAs that the applicant had formally applied for a new identity card on 28.05.2008, which was issued on 10.02.2009, after a period of over nine months, and that if this period had been taken by the respondents to prepare the identity card and the applicant was not allowed to join the office, such period could not be attributed to the applicant for not joining duties. In view of this observation of the Tribunal, the respondents were duty bound to regularize the period which was consumed during preparation of the identity card, because it was the inaction on the part of the respondents that the identity card was not prepared immediately as usual, and extraordinary time was consumed by the respondents, and it shows the dishonest intention of the respondents. Moreover, the respondents themselves also, as pleaded in their counter reply, have considered certain period of more than two months as on duty. Hence, it were the respondents who were responsible for the applicant not attending the office and the lapse cannot be attributed to the applicant. The respondents have themselves admitted that provisional pension was sanctioned to the applicant of Rs.27,750/- plus DR as admissible, and they have also alleged that as per rules she is entitled to a basic pension of Rs.37,850/- (50% of Rs.75,700/-) plus DR thereon, in the HAG+ scale of Rs.75,500-80,000, admissible to DIG under IPS (Pay) Rules, and the applicant is entitled to get her pension revised with effect from 19.12.2009.
14. In our opinion, the OA deserves to be allowed, and the applicant is entitled for the benefit claimed by her. OA is allowed and the period of the alleged unauthorized absence w.e.f. 29.08.2008 to 05.04.2009 and from 10.06.2009 to 26.11.2009 is regularized, and now the respondents cannot conduct the enquiry against the applicant. A formal order shall be passed by the respondents for regularization of this period of alleged unauthorized absence as per directions of the Tribunal within a period of one month from the date of communication of the order. The respondents are also directed to revise the pension of the applicant basic pension Rs.37,850/- (50% of Rs.75,700/-) plus Dearness Relief as admissible with effect from 19.12.2009. The difference of pension shall be paid to the applicant within a period of one month from the date of communication of this order. Although the applicant has claimed cost of the litigation also, but considering the facts of the case, we are not intending to impose special costs on the respondents or to award the expenses of litigation incurred by the applicant. The costs are made easy.
( Dr. Ramesh Chandra Panda ) ( S. C. Sharma )
Member (A) Acting Chairman
/as/