Central Administrative Tribunal - Delhi
Inder Prakash vs Govt. Of Nctd on 7 December, 2022
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Item No. 04
OA No.1613/2016
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.1613/2016
This the 7thday of December, 2022
Hon'bleMr. R. N. Singh, Member (J)
Hon'ble Shri Tarun Shridhar, Member (A)
Shri Inder Prakash,
S/o late Sh. Prabhu Dayal,
Aged about 53 years,
R/o Vill. & P.O. AsiakiGorawas,
Tehsil Rewari, District Rewari (Haryana)
And was working as Peon.
Now removed from service.
...Applicant
(By Advocate : Shri T.D. Yadav)
VERSUS
1. Government of NCT of Delhi
(Through its Chief Secretary)
Delhi Secretariat,
I.P. Estate. New Delhi-110002.
2. The Director of Education,
Directorate of Education,
Government of NCT Delhi
Old Secretariat, Delhi.
3.The Regional Director of Education (South),
O/o Regional Director of Education,
C-4, VasantVihar,
New Delhi.
4.The Dy. Director of Education,
District South West-B,
Najafgarh, Delhi.
... Respondents
(By Advocate : Shri Saurabh Chadda)
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Item No. 04
OA No.1613/2016
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) :-
The applicant was working as a Peon with the respondents and was subjected to disciplinary proceedings vide a Memorandum containing article of charges on 02.02.2012. A regular departmental inquiry was held into the charges framed against the applicant; the Inquiry Officer held him guilty of the charges and submitted his report to the disciplinary authority for passing appropriate orders. The inquiry was conducted into a singular charge levelled against the applicant, which was of remaining absent from duty on different dates in an unauthorised manner despite the fact that he had already availed 1230 days' leave indicating that he is a habitual absentee. Acting upon the report of the Inquiry Officer, the Disciplinary Authority imposed the penalty of removal from service upon the applicant, vide order dated 01.06.2013 which was re-affirmed by the Appellate Authority on 17.02.2016, while deciding the appeal of the applicant. Aggrieved by these two orders, he has 3 Item No. 04 OA No.1613/2016 preferred the present OA, seeking the following relief(s) :-
"(i) to set aside & quash the impugned orders dt. 01.06.2013 and 17.2.2016 (Annexure A (Colly))
(ii) to direct the respondents to reinstate in service to the applicant and direct the respondents to restore all the position of the applicant prior imposition of penalty removal from service upon the applicant.
(iii) to direct the respondents to grant all the consequential benefits like seniority promotion and pay and allowance after granting relief (i) & (ii) to the applicant.
(iv) to pass any other order(s) as deem fit and proper in the present case.
(v) Award cost."
2. Taking us briefly to the background and history of the case, learned counsel for the applicant submits that the decision of the respondents to inflict the penalty of removal from service upon the applicant smacks of arbitrariness and discrimination. He centres his argument primarily around the quantum of punishment imposed upon the applicant arguing that the penalty of removal from service is so severe 4 Item No. 04 OA No.1613/2016 as not to be commensurate with the gravity of the alleged misconduct.
3. He highlights that this penalty is contrary to the guidelines and instructions with respect to determining the quantum of punishment in disciplinary proceedings. Terming such a punishment as a death sentence to a low paid employee, he vehemently prays for setting aside of the same being bad in law. Pointing to what he calls infirmity in the orders of the disciplinary and the appellate authorities, he submits that they have drawn false inference that the applicant is a habitual absentee and does not seem to be interested in his duties. He points that a period of more than 1200 days mentioned by the authorities, on which he had availed leave, is a period for which the applicant has taken leave during his long service of more than 20 years. He argues that the prejudice of the authorities may be quite apparent as the respondents have taken extraneous facts and circumstances into consideration while imposing the said penalty upon the applicant. He also argues that the applicant was 5 Item No. 04 OA No.1613/2016 denied an opportunity to lead his defence and no written statement of defence was obtained from the applicant before conclusion of the inquiry proceedings. He points out towards certain presumptions and inferences not only contained in the orders of disciplinary and appellate authorities but also in the report of inquiry officer highlighting that it points towards a clear prejudice such authorities may have been nursing against the applicant. Accordingly, he vehemently argues that both the orders being bad in law deserve to be set aside.
4. Learned counsel for the respondents drawing attention to the specific averments made in the counter reply submits that there is no procedural lacunae or infirmity in the entire proceedings nor in the orders passed by the disciplinary and appellate authorities. Both these orders strictly comply with the conditions set forth for a reasoned and speaking order. The entire case against the applicant hinges upon the documentary evidence and nowhere has the applicant been able to state that he was not absent on 6 Item No. 04 OA No.1613/2016 the day for which the charge of absence has been levelled against him. The defence of the applicant also suffers from contradictions as at times he assigns the reasons for absence upon his own illness and on other occasions the illness of his mother. The learned counsel points out that the applicant has not been able to point out any lacunae as far as the procedural and statutory requirement of CCS (CCA) Rules is concerned. Accordingly, inquiry and the subsequent proceedings have been conducted strictly in accordance with Rules governing disciplinary proceedings.
5. We have heard the learned counsels for the parties at length on more than one occasion. We have also gone through the voluminous documents available on record.
6. The basic facts of the case are not disputed. The article of charge was issued to the applicant for proceeding against him under Rule 14 of the CCS (CCA) Rules, 1965. After taking his reply into consideration, an inquiry officer was appointed who 7 Item No. 04 OA No.1613/2016 conducted a detailed inquiry and submitted his report holding that the charges against him are proved. However, we note that in the inquiry report there are certain observations with respect to the conduct of the applicant which was not a subject of the charge sheet against him. To illustrate, the inquiry officer holds the applicant guilty of using abusing language against some of his colleagues even though there was no charge with respect to such misconduct in the article of charge framed against the applicant. Similarly, while agreeing that the order passed by the disciplinary authority is a detailed and speaking order, we cannot fail but to notice that when it comes to being a reasoned order, it falls short. The disciplinary authority holds that the applicant is hampering the functioning of the school and has also become a liability to his school and goes on to state that such act justifies the termination as the official lacks interest in his duties. The allegation against the applicant was merely absence from duty without obtaining leave. There was no allegation against him with respect to his work performance.
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7. In our considered view disciplinary authority could not have brought in these extraneous factors into consideration. Moreover, we notice that the appellate authority also instead of passing the order by applying her own independent mind, has concluded the order by saying that the grounds raised in the appeal have already been considered by the disciplinary authority. The appellate authority has no where stated that she has considered all these issues independently before drawing her conclusion. Moreover, the various documents, especially the medical certificates in support of illness have not been given due weightage and consideration, but we have to take into consideration the fact that these are reports given by professional medical officers competent to do so.
8. On the other hand, having made these observations, we also have to record that it is factually proved that the applicant was absent on various days as contained in article of charge. We also notice that even though the applicant may be having strong justification to remain absent all these days, it has come on record that he did not proceed on an 9 Item No. 04 OA No.1613/2016 authorised leave and hence in terms of rules governing leave, this period has to be treated as unauthorized absence from duty.
9. We are of the considered view that penalty of removal from service imposed upon him is truly disproportionate. We are conscious of our limitation and recognize that the Tribunals or Courts normally should not interfere in the quantum of penalty imposed, as this is a sole prerogative of the relevant Disciplinary and Appellate Authorities. But at the same time, if such a penalty shocks our conscience and is disproportionate to the gravity of charge, it is incumbent upon us to interfere. This being a fit case to interfere, we set aside the order passed by the Disciplinary Authority on 01.06.2013 and the Appellate Authority on 17.02.2016, vide which the penalty of removal from service was imposed upon the applicant. While setting aside the said impugned orders, we remand the matter back to the said authorities with a clear direction to review the entire disciplinary proceedings against the applicant and take a fresh decision in the matter, with a rider that if they decide to impose a penalty afresh upon the 10 Item No. 04 OA No.1613/2016 applicant, they shall be at liberty to impose any penalty other than dismissal or removal from service. The said directions shall be complied with, within a period of six weeks from the date of receipt of a certified copy of this order. The applicant, if the circumstances so arise, shall be entitled to all consequential benefits that may subsequently accrue.
10. The OA stands allowed against the background of these directions.
There shall be no order as to costs.
(Tarun Shridhar) (R. N. Singh)
Member (A) Member (J)
/rk/