Central Administrative Tribunal - Delhi
S.P. Goswami vs Kendriya Vidyalaya Sangathan on 27 January, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.1239/2010 New Delhi, this the 27th day of January, 2012 Coram: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) S.P. Goswami, R/o C-27/UG-1, Dilshad Colony, Delhi 110 095 Applicant (By Advocate: Shri M.K. Bhardwaj) Versus Kendriya Vidyalaya Sangathan Through 1. The Commissioner, Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi 110 062 2. The Joint Commissioner (Admn), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi 110 062 3. The Assistant Commissioner, KVS, Regional Office, Regional Office, Silchar, New Delhi Respondents (By Advocate: Shri S. Rajappa) O R D E R
By Dr. Veena Chhotray:
The applicant, an ex-PGT (Chemistry) under the KVS, has challenged confirmation of the provisional loss of lien on the post held by him and deemed removal from service with effect from the date of his remaining absent from duty i.e. 27.6.2005. By way of main relief, the OA seeks quashing and setting aside the impugned order dated 15.9.2006 passed by the Disciplinary Authority (Annex A/1) along with the order of the Appellate Authority dated 21.4.2008 upholding the DAs order (Annex. A/2). Besides, directions for reinstatement in service with all consequential benefits including arrears of pay have been sought.
2. The learned counsels, Shri M.K. Bhardwaj and Shri S. Rajappa would appear respectively for the applicant and the Respondents.
3. The brief factual matrix of the case relevant for purposes of adjudication of the present OA is summed up below.
3.1 Initially appointed as a Primary Teacher, the applicant was subsequently appointed by way of direct recruitment as a TGT. The applicant was promoted as a PGT in course of time. He was posted at Gurgaon.
3.2 The problem seems to have started after his transfer to KV No. 1, Kunjaban, Agartala in December, 2000. Without going into the intervening details, suffice it is to note that the services of the applicant got terminated under Article 81 (d) of Education Code, vide the order dated 22.3.2004. However, this order was set aside by the Appellate Authoritys order dated 22.2.2005. The applicant was reinstated in service vide the Order dated 27.1.2005. He joined at KV Kunjaban, Agartala on 22.2.2005.
3.3 The present cause of action started a few months after the rejoining of the applicant at Kunjaban, Agartala. The period of unauthorized absence, for which the impugned orders have been passed, spans from 27.6.2005 till 15.9.2006 (the date of passing of the DAs order). The following paragraphs contain a brief account of the main events that took place which ultimately led to the extreme decision of removal from service.
3.4 The unauthorized absence from duty began from June, 2005. Varying versions of the reasons and the circumstances behind such absence have come forth from both sides. Where as according to the applicant he had fallen sick and had applied for medical leave with certificates (Para 4.9); according to the corresponding reply in the CA, the applicant had remained unauthorizedly absent from 27.6.2005 onward without sanction of leave from the competent authority. It is noted that despite an averment of the copies of the said application and medical certificates being enclosed, no such annexure is found with the OA.
3.5 The OA avers that because of the health problems of the applicant as well as of his mother, application for extension of leave dated 14.12.2005 was submitted (Para 4.10). The annexures enclosed with the OA, however, reveal an application on this date having been sent by the father of the applicant to the Minister of State, HRD, GOI (Annex. A/8). Mentioning the various family circumstances, which included health problems, education of children and the wife of the applicant working at a Kendriya Vidyalaya at Delhi, request was made for posting of the applicant at Delhi or a nearby place.
The point to be noted at this stage is that even accepting the contention of the applicant at its face value, the request for extension of leave was six months after the commencement of the initial absence in this case.
Again on 7.2.06, an application was sent to the Principal requesting for grant of leave upto 31.3.2006. The reasons stated were serious health problems of the mother due to daily dialysis and the daughters Matriculation Examination in March 06. After the examination was over, resumption of duty on or before 2.4.06 was committed by the applicant (Annex. A/7).
3.6 During this period, the applicant was advised by the Principal to report for duty on several occasions. The letters mentioned in this context are dated 12.7.05, 6.8.05, 29.11.05, 29.1.06 and 4.3.06 (the fact sheet enclosed with the DAs order). Besides, a Memorandum dated 13.3.06 was also issued by the Assistant Commissioner, Silchar Region (the Disciplinary Authority in this case) with a direction to report for duty within 10 days from its receipt.
3.7 Instead of reporting to duty as directed, the applicant sent a letter dated 21.3.06 to the Assistant Commissioner (Annex. A/9). Mentioning about the Railway bookings and being wait-listed on 22.3.2006 and 10.4.2006, it was stated that assuming the confirmation of the latter the applicant would be leaving Delhi accordingly. However, instead of resuming duty as per this letter, on 10.4.06, the applicant sent another application to the Principal (Annex. A/10) mentioning about the difficulties in getting the Railway reservations, extension of leave without pay w.e.f. 25.6.2005 for a period up to 30.4.06 was prayed. In the same letter the applicant also mentioned about Kidney problems being faced by himself and his mother. Enclosing copies of the prescriptions and medical certificates, grant of EoL on medical grounds was also requested.
3.8 The Counter Affidavit states that as the applicant had not reported for duty even after one month of submission of his reply to the ACs Memorandum dated 13.03.06; he was issued a show cause notice dated 25.4.2006 under Article 81 (d) by the AC, Silchar Region. 10 days time was given to the applicant for making representation as to why the order of provisional loss of lien should not be confirmed (Annex. A/11).
In his representation dated 6.5.2006, the applicant while raising various pleas i.e. his application for transfer, ignorance of provisions of Article 81 (d), medical problems, start of summer vacation from 7.5.06 and issues of payment of TA/DA advance expressed his willingness to join duties. However, instead of joining duties the applicant vide his letter dated 6.6.06 informed the AC, Silchar Region, seeking permission to join duties.
3.9 As the applicant was not joining, vide the ACs letter dated 17.7.06, he was directed to report to the Regional Office on 4.8.2006 at 11 AM along with medical and fitness certificates.
Once again vide his letter dated 2.8.2006 (Annex. A/13), the applicant wrote to the Assistant Commissioner about his claimed entitlement to TA/DA as per the recall order of the AC by which he was stated to be treated as on duty. Non-settlement of pending TA/DA claims at Agartala was mentioned and request made for sending to the applicant an amount of Rs.12,000/- as TA/DA advance. It was also stated that the applicant was coming to the AC at Silchar under protest. Again mentioning regarding the booking of the Railway tickets for the date 20.8.2006, request was made for treating this application as his joining report while physically the applicant was to be present at Silchar on or around 24.8.2006 on confirmed Railway ticket.
Another letter dated 19.8.2006 was also received by the respondents on 31.8.2006 with details of cancellation of his old Railway ticket, waiting list position no.1 of new ticket. The applicant had now stated about reporting to the Regional Office on 14.9.2006 and about an amount of Rs.22,000/- being sent to him as an advance.
3.10 The impugned order dated 15.9.2006 of deemed removal by invoking Article 81 (d) of the Education Code got passed in the above background.
4. It is the contention of the respondents that the conclusion regarding the applicant having voluntarily abandoned his service as PGT (Chem.) at KV Kunjaban, Agartala and the decision to remove him from service by invoking Article 81 (d) of the Education Code was well justified under the facts and circumstances of the case. In this context, the following conclusions drawn by the Disciplinary Authority, as per the fact sheet enclosed with the Order dated 15.9.06 are quoted below:
In the light of above sequence of events and facts and circumstances, the following conclusions are made by the undersigned, being the disciplinary authority.
a) Shri S.P. Goswami was absent from duty for a period of more than one year from 27.6.05 till date.
b) Several orders were issued to him to report for duty in the interest of the children but he has not complied with the directions.
c) Sufficient opportunities were given to Shri S.P. Goswami to report for duty including personal hearing. But he has not availed the opportunity.
d) Shri S.P. Goswami failed to appreciate that waiting list position of Railway tickets, possibility of confirmation of tickets, settlement of TA/DA etc. are not valid reason for not reporting for duty in a Govt. service. Though in his letters Shri Goswami made a pre-condition of confirmation of Railway Tickets for his reporting even though the date of reporting was given on 04.8.2006, the process of purchasing Railway Tickets, showing the position in waiting list, cancellation and purchasing a new ticket etc. is considered as dilatory tactics. Still, this office was hopeful that he would report latest by 14.9.06 as his new Rly. Ticket showed waiting list no.1. But he did not turn up till date.
e) Shri S.P. Goswami has also failed to understand the difficulties of the children studying in class-XI and XII in the absence of a regular Chemistry Teacher and the students are to satisfy with the part-time/temporary arrangements made by this school.
f) Having removed from service under 81(d) in 2004 and having reinstated by the appellate authority on sympathetic ground, Shri Goswami failed to avoid similar instance for the rest of his service.
In the light of findings at a) to f) above, the undersigned is convinced that Shri S.P. Goswami has voluntarily abandoned his service as PGT (Chem) at Kunjaban, Agartala and hence the decision to remove him from service by invoking article 81(d) of the Education Code.
5. In support of the claims in the OA, the main pleas raised are: (i) Non-consideration by the respondents of the family problems-including health problems-suffered by the applicant. Non-acceding to his request for his transfer to a place closer to Delhi has also been mentioned. (ii) The respondents are alleged to have dealt casually his various contentions regarding the Railway bookings or the TA/DA advance.
Among the legal grounds, it is contended that the present one was not a case of voluntary abandonment of duty. Ground E adverts to the Honble Apex Courts decision in GT Lad and Others Vs. Chemical and Fibers of India [1979(38) FLR 1995] to argue that abandonment means relinquishment of interest or claim. Another judgment of the Honble Kolkata High Court in EMPC of Eastern Coal Fields Ltd. Vs. UOI [FLR 1998(79) 777], has also been cited where it was held that to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. Carrying this argument further, it is submitted that the applicant had responded to all the communications from the authorities and had made clear his intention to resume duty. His non-joining was only on account of the peculiar circumstances of his case and the harassment suffered by him due to his family and personal problems. On the other hand, non-sanction of leave (even medical leave) by the respondents is held out against them as an indication of their arbitrariness.
As a legal infirmity, it is also averred that the applicant being a confirmed employee, his services could not be terminated without holding a regular inquiry as per the CCS (CCA) Rule 14. The legal validity of Article 81 (d) itself, contended to be violative of Article 311 (2) and being in direct conflict with the CCS (CCA) Rule, has been challenged. The impugned order dated 28.1.2010 rejecting the revision petition is stated to have been passed without due application of mind and by ignoring Rule 29 (a) of CCS (CCA) Rule.
6. On behalf of the respondents, the KVS being an autonomous body registered as a Society and being governed by its own Rules have been submitted. The objectives of the KVS to impart quality education to the children of transferable employees of the Government of India and the country wide organizational structure comprising nearly 1000 such schools have been stated too. (These facts are important for an overall view of the issues involved in this OA).
While admitting that the CCS (CCA) Rules are applicable to KVS mutatis mutandis, it is also submitted that to deal with certain special problems in the interest of the Organization and to achieve its objectives, special provisions under Article 81 (d) of the Education Code have been prescribed by the competent authority of the KVS. Rebutting the challenge to the legal sustainability of this provision, it is submitted that the same is no more res integra and has been upheld by judicial pronouncements.
Justifying the impugned action, it has been stated that the authorities had duly considered all the facts and circumstances of the case; and had provided sufficient opportunities to the applicant to report for duty. The various pretexts cited by the applicant for extension of leave or non-compliance to the directions of the authorities, are stated to be sheer dilatory tactics. Many of these grounds are also averred to be non-relevant to the basic issues.
7. Before recording our findings in respect of the issues involved in this OA, it would be apt to cite the relevant provisions of Article 81 (d) of the Education Code:
Article 81 (d) Voluntary abandonment of service (1) If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his lien on his post unless:-
(a) he returns within fifteen calendar days of the commencement of the absence or the expiry of leave originally granted subsequently extended, as the case may be; and
(b) satisfied the appointing authority that his absence or his inability to return on the expiry of the leave as the case may be was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose lies on his post.
(2) An employee, who has provisionally lost lies on his post in terms of the aforesaid provisions, shall not be entitled to the pay and allowances or any other benefit after he has provisionally lost lien on his post:
Provided that payment of such pay and allowances will be regulated by such directions as the appointing authority may issue while ordering reinstatement of the employee in terms of Sub-clause (6) of this Article.
(3) In cases failing under Sub-clause (1) of this Article, an order recording the factum of voluntary abandonment of service by the employee and provisional loss of his lien on the post, shall be made and communicated to the employee concerned at the address recorded in his service book and/or his last known address, to show cause whey the provisional order above mentioned may not be confirmed.
(4) The employee may make a written representation to the appointing authority, within ten days of receipt of the order made under sub-clause (3).
(5) The appointing authority may on receipt of the representation, if any, an perusal of materials available on record as also those submitted by the employee, grant, at his discretion, an oral hearing to the employee concerned to represent his case.
(6) If the appointing authority is satisfied after such hearing that the employee concerned has voluntarily abandoned his service in terms of the provision of Sub-clause (1) of this Article, he shall pass an order confirming the loss of employees lien on his post, and, in that event, the employee concerned shall be deemed to have been removed form the service of the Kendriya Vidyalaya Sangathan with effect from the date of his remaining absent in case the appointing authority is satisfied that the provisions of Sub-Clause (1) of Clause (d) of this Article are not attracted in the facts and circumstances of the case, he may order reinstatement of employee to the post last held by him, subject to such directions as he may give regarding the pay and allowances for the period of absence. While there is a provision for preference of an appeal to the notified Appellate Authority; there is an express provision prescribing finality of the order passed in appeal, and the same not being called in question by way of any further application/petition for revision, review etc. (Sub-Clause 12)
8. Having considered carefully the respective submissions, the material on record and the judicial pronouncements on the subject cited before us, our observations / findings in respect of the relevant aspects are as below:
8.1 The legal validity of Article 81 (d) is no more res integra. The basic law on the subject was laid down by the Delhi High Court in its judgment dated 1.11.2002 in Prem Juneja vs Union of India (2002 LE(Del) 729). While dealing with the pleas of the petitioner in that case of Article 81 (d) being violative of Articles of 14 and 16 of the Constitution; running contrary to Article 311; and being violative of the principles of natural justice: the Honble High Court had rejected such pleas on a number of grounds. It was held that Article 311 does not apply to the employees of the KVS, as they are not employees of the Government of India (Para-9). Further, the Honble High Court was not impressed with the plea of the same being violative of the equality clause or of the principles of natural justice. The view taken by the Honble Apex Court in respect of Rule 5 (8)(i) of the Aligarh Muslim University Leave Rules, 1969 comparable to Article 81 (d) of the Education Code of the KVS was also relied upon.
The strong defence of these special provisions, as contained in Para-11 of the Order, in the wider public interest is cited below:
A reading of the aforesaid Article 81(d) leaves no manner of doubt that it does not suffer from any of the vices on the basis of which it has been attacked by the learned counsel for the petitioner. We are not impressed by the submission of the learned counsel for the petitioner that the aforesaid Article 81(d) of the Education Code is violative of the equality clause. There is nothing in Article 8(d) of the Education Code which makes it unjust, unfair and unreasonable. It is meant to deal with an unwarranted situation of absentism. Absentism is bane of public service. The erring employees have been taking advantage of the procedure and mocking at the system. Unauthorised absentism in offices is rampant. There are instances galore where the employees remained absent for several years and yet were able to successfully challenge the orders of their terminations. This had given undue advantage to the erring employees. They not only were able to get the orders of termination quashed or set aside, but they were also reinstated with full back wages. This situation cannot be3 allowed to prevail. The indiscipline must be curbed in order to infuse efficiency and discipline in the services. It was possibly in this view of the matter that Article 81(d) of the Education Code was framed. As regards the inherent safeguards built in this provision for due observance of the principles of natural justice, the following was observed:-
12. Article 81(d) clearly makes a provision for providing an opportunity to an employee to show cause against the provisional view of the concerned authority that the employee has lost his or her lien on the post on the ground of his unauthorized absence from duty. Such an employee, who remained absent, can render his explanation. In case the Disciplinary Authority rejects the explanation and passes an order confirming loss of lien on the post held by him or her and removing him from service, he or she can file an appeal before the Appellate Authority. The Supreme Court in Aligarh Muslim University and others v. Mansoor Ali Khan, 2000(6) SCALE 125, while dealing with Rule 5(8)(i) of the Aligarh Muslim University Revised Leave Rules, 1969, which rule is identical to Article 81(d) of the Education Code, held as follows. The aforesaid view has been upheld in a number of cases, some of which have been cited before us by the Respondents i.e. Usha Bisht vs UOI India {WP (Civil) No.10114/2009 decided on 17.7.2009 decided by the Honble Delhi High Court} and Mrs. Jyoti Sharma Vs. Kendriya Vidyalaya Sangthan & Ors decided by the Chandigarh Bench of the Tribunal on 10.12.2002.
8.1.1 Many of the related arguments raised in the OA regarding the inconsistence of Article 81 (d) with the CCS(CCA) Rules or the non-observance of the inquiry as per CCS (CCA) Rule 14 would also lose their steam in the process. The same would also apply to the strand of arguments challenging the impugned order dated 28.1.2010 rejecting the revision petition, on the ground of its ignoring the CCS (CCA) Rule 29 (A). The express provision forbidding any further consideration after the order of the Appellate Authority as per Clause 12 of 81 (d) clearly precludes the legal tenability of any such argument.
8.2 A plea has been taken by the applicant about the present case not constituting one of voluntary abandonment of service. However, such a plea lacks any foundational premise in view of the clear definition of such an act in the context of the employees of the KVS, as contained in the provisions of Article 81 (d) itself. We are of the considered view that under the facts and circumstances of the case, this plea of the applicant is not found acceptable. Even the reliance placed on certain judicial rulings in the OA would not help the matter considering the distinguishable facts of the cases and evoking the doctrine of circumstantial flexibility.
8.3 The order of the Disciplinary Authority lists the detailed steps taken before passing the order of deemed removal. It is also enclosed by a comprehensive fact sheet narrating the entire gamut of circumstances, which led the Disciplinary Authority to arrive at the conclusion of the present case being a fit one for evoking the extreme provisions of Article 81 (d) of the Education Code. We do not find the present one a case of either non-observance of the prescribed procedures as per the provisions of 81 (d) of the Code or any kind of hastiness or arbitrariness on the part of the respondents in arriving at such a decision.
8.4 The OA has also challenged the order of the Appellate Authority dated 21.4.2008. The applicant had preferred an Appeal dated 30.10.2006 against the Disciplinary Authoritys order dated 15.9.2006. This appeal was rejected by the Appellate Authority by the above Order (Annex. A/2). A perusal of this order reveals a detailed mention of the main submissions made by the concerned employee and their reasoned point-wise consideration, before taking a view regarding rejection of this appeal. Hence nothing is found questionable in respect of the order of the Appellate Authority as well.
9. To conclude, having closely gone through the factual trajectory of the case and the various issues involved, we have not found the claims to be justified either on factual averments or on the legal pleas raised. What we find is a classic case of chronic absenteeism, triggered by the fact of the applicant having been posted to a North-Eastern State. The observations of the Honble Delhi High Court describing this as an unwarranted situation, bane of public service fully seem to fit the facts of the case. We have concluded about the respondents having not only given a long rope to the applicant for more than a year (to be precise for 15 months) with a view to bring him back to join duty; but also observed fully the principles of natural justice as well as the procedural requirements prescribed under Article 81 (d). While reiterating the legal sustainability of Article 81 (d), we have been guided by the law as laid down by the Honble Delhi High Court in Prem Junejas case (supra). The orders of the Disciplinary Authority as well as the Appellate Authority are found to be speaking and reasoned. The order dated 21.8.2010 rejecting the review petition is in consonance with the provisions under Article 81 (d).
Resultantly, the OA lacks merit and is dismissed hereby with no order as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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