Central Administrative Tribunal - Hyderabad
Shri K.Venkateswara Rao vs Union Of India Rep. By The Comptroller on 14 July, 2009
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL: HYDERABAD BENCH:
HYDERABAD
ORIGINAL APPLICATION NO.337 OF 2008
DATE OF ORDER: 14th JULY, 2009
BETWEEN:
SHRI K.VENKATESWARA RAO,
S/o Shri Dwaraka Krishna,
Aged about 45 years,
Occupation: Senior Auditor in the
office of the Principal Accountant General (Audit)-I,
A.P., Hyderabad,
.. APPLICANT
AND
1. Union of India rep. By the Comptroller
and Auditor General of India,
New Delhi,
2. The Principal Accountant General (Civil Audit),
Andhra Pradesh, Hyderabad,
3. The Senior Deputy Accountant General (Admn),
O/o The Principal Accountant General (Civil Audit),
Andhra Pradesh, Hyderabad,
4. The Deputy Accountant General / A (AU) I,
O/o The Principal Accountant General (Civil Audit),
Andhra Pradesh, Hyderabad,
RESPONDENTS
COUNSEL FOR THE APPLICANT: Mr. Krishna Devan, Advocate
COUNSEL FOR THE RESPONDENTS: Ms. N.Shakti, Addl. CGSC.
CORAM:
HON'BLE MRS. BHARATI RAY, MEMBER (JUDL.)
HON'BLE MR. HRIDAY NARAIN, MEMBER (ADMN.)
ORDER
(PER HON'BLE SHRI HRIDAY NARAIN, MEMBER (ADMN.) The present OA has been filed by the applicant against imposition of penalty of compulsory retirement from service.
2. The facts as stated in the OA are that the applicant was appointed as Clerk under Sports Quota, he being a Chess Player, on 31.12.1987. He was promoted as Auditor in 1990 and as Senior Auditor in 1993. The applicant had applied for Earned Leave from 29.7.2002 to 16.8.2002, for attending to his ailing mother as well as wife. The said leave was extended by him from 17.8.2002 to 23.8.2002. Further, he had applied for Half Pay Leave from 24.8.2002 to 30.8.2002 and Extraordinary Leave from 31.8.2002 to 25.9.2002. Again the applicant had extended the Extraordinary leave from 26.9.2002 to 4.11.2003 for which leave applications and telegrams were sent to his Supervisor from time to time. The applicant states that the above said leave has been duly recommended by his Supervisor. However, the 4th respondent had kept them pending without sanctioning. The applicant further states that he was on duty for the following days/period, which were accepted by his Supervisor:-
1. 3.3.2003 to 11.3.2003
2. 8.4.2003 to 10.4.2003
3. 21.4.2003
4. 24.4.2003
5. 25.4.2003
6. 27.4.2003
7. 29.4.2003
8. 30.4.2003
9. 1.5.2003 to 4.5.2003
10. 6.5.2003
11. 8.5.2003 to 20.5.2003
12. 26.5.2003
13. 5.8.2003 to 7.8.2003 The 4th respondent issued charge sheet No.CO-ORDN.CELL/confd/dc1/8-189/2002-2003/63, dated 5.12.2002 with the following Article of charge:-
Article I:
That the said Sri K.Venkateswara Rao while working as Sr. Auditor in the Office of the Principal Accountant General (Audit), Andhra Pradesh, Hyderabad is found to be very irregular in attending the office. He is habituated to stay away from his duties frequently. In spite of the penalty of withholding his next two increments for two years, one year each, without cumulative effect imposed on him in office order No.20 dated 11.7.2002 for his unauthorised absence during the period from 11.6.2001 to 15.5.2002, Shri K.Venkateswara Rao, Sr Auditor has again been absent from duty during the period from 29.7.2002 to date without proper sanction of leave.
Thus by absenting himself from duty for the period from 29.7.2002 to date without obtaining proper sanction of leave, Shri K.Venkateswara Rao, Sr.Auditor violated the provisions of para 2.60 of Manual of General Procedure and exhibited lack of devotion to duty and behaved in a manner unbecoming of a Government servant and thereby violated Rule 3(1)(ii) and 3(1)(iii) of Central Civil Services (Conduct) Rules, 1964.
3. An enquiry was conducted and the Enquiry Officer submitted the enquiry report dated 12.1.2004 holding that the charge of lack of devotion to duty was not proved and the charge that he ehaved in a manner unbecoming of a Govt. servant in violation of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964 is proved. The disciplinary authority vide order dated 21.7.2004 imposed a penalty of reversion to the next cadre for two years which was confirmed by the appellate authority on his appeal.
4. The applicant has submitted that again, the 4th respondent, vide memo dated 4.11.2003 issued similar charge memo of absenting himself without prior and proper sanction of leave from 6.12.2002 to 4.11.2003. The applicant denied the said charge. An enquiry was conducted and the Enquiry Officer submitted his report on 1.9.2005 holding the charge as proved. The disciplinary authority imposed a penalty of compulsory retirement from service with immediate effect, vide order dated 31.5.2007. The appeal dated 24.7.2007 preferred by the applicant was rejected by the appellate authority vide order dated 17.9.2007 confirming the order of penalty. Hence, the present OA. The relief sought for in the OA is as under:-
Call for the records up to the order dt. 17.9.07 and set aside the charge sheet dt. 4.11.2003, the order passed by R-3 bearing No.PAG(CA) 1/COC/BC/1/8-192/2007-08/10, dt..31.5.2007 and the order of the appellate authority i.e., R-2 being No.PAG (CA) /CO-ordn cell / DC 1/8-192/Vol.II/2007-08/38 dt.17.9.07 as arbitrary, illegal, malafide without application of mind, violation of Article 14, 16, 21 & 311 of the Constitution of India and the provisions of Central Civil Service (CCA Rules 1965) and consequently to direct the respondents to reinstate the applicant to duty as Senior Auditor in the O/o R-4 with all consequential benefits and pass such other or further orders as deemed fit and proper in the circumstances of the case.
5. The applicant has argued that he had admittedly proceeded on leave after submitting leave application to the concerned supervisor who had duly recommended his case to the higher authorities who have not thought it fit to pass orders on it. Once the applicant had explained about his absence in response to the charge sheet dt.5.12.2002, the respondent authorities could not have once gain chosen to implicate the applicant in the disciplinary proceedings which was set in the form of charge sheet.
6. The applicant has further argued that the respondent authorities without passing orders on leave applications, have misused the power and also abuse of process in law, in issuing the charge sheet dt. 4.11.2003 for the same kind of allegations. The allegation of misconduct vide charge sheet dated 5.12.2002 was found as not proved by the Enquiry Officer and again the same being brought in for extraneous reasons and thus harassed the applicant to suffer the proceedings in disciplinary case.
7. It is submitted that the applicant had applied for leave without pay and allowances and submitted application in advance and sought for extension of the same in advance and such applications were never rejected by the supervisor and in fact forwarded to the leave sanctioning authority with suitable recommendations. The EL, HPL & EOL were admissible under the rules. EL also was available at his credit. Hence, the decision of the 4th respondent to initiate disciplinary action is mala fide, discriminatory, as there were several cases of the department officials who have not been proceeded with.
8. It is further submitted that the reasons for absence was explained in the defence to the charge memo dated 5.12.2002 that his mother was hospitalised which required his presence very much which is not avoidable and thus he was prevented from attending to the duties a nd hence submitted application for leave. Inspite of such reasonable and genuine cause, the 4th respondent had chosen to issue the charge sheet dated 4.11.2003 which is mala fide and malicious prosecution.
9. The applicant has submitted that the life of his ailing mother is so previous and it is necessary for the applicant, being eldest son, to look after her. The respondents remained hostile and in humane when his request for transfer was not considered, when leave without pay is asked for is also kept pending and on the top of it, implicating in a departmental proceedings twice for one and the same charges, is misconduct of a rank and vindictiveness.
10. The applicant has further submitted that the enquiry report was not forwarded to the applicant nor explanation to the Enquiry report was called for and thus the applicant was denied the reasonable opportunity to deny the charges. Admittedly, the applicant states that a copy of the enquiry report was made available to him on 17.7.2007 after the punishment order was communicated.
11. The applicant has argued that the disciplinary authority failed to apply his mind and had mechanically endorsed the finding of the Enquiry Officer. It is submitted that the finding of the enquiry Officer is only advisory whereas the disciplinary authority is the proper authority to come to a conclusion about the guilt of the charged official which is a minimum safeguard which is also not reflected in the impugned order of punishment. The disciplinary authority also failed to take an independent decision as to the guilt of the applicant.
12. The applicant has further argued that it is an admitted fact that the leave sanctioning authority had failed to finalise and dispose of the leave application either rejecting or accepting. The genuineness of the reasons for his absence was not doubted at all by the leave sanctioning authority. Without doing so, the charged official should not be penalised and especially when the applicant represents the department in the chess tournaments and brought laurels to the department. The disciplinary authority and the appellate authority have failed to apply their mind to the root cause which made him irregular in his duties.
13. It is argued that the respondents, without considering the fact that the applicant had submitted doctor certificate about the necessity of the applicant to remain attending to the ailing mother and some times wife also, and without sanctioning the leave applied for, and also without considering his request for transfer to enable him to attend his ailing mother who was staying in a remote village warranting his presence, proceeded against the applicant and imposed the said punishment.
14. It is further argued that the disciplinary authority failed to hold the charges proved and also failed to state that the charges proved were of the grave misconduct warranting imposition of such kind of punishment. It is argued that the OA deserved to be allowed.
15. In the reply statement, the respondent have submitted that the applicant did not apply for leave prior to his proceeding on leave. His application for grant of E.L. for the period from 29.7.2002 to 16.8.2002 was received in the office on 16.8.2002 and the leave was recommended by the Assistant Audit Officer/CA-IV Section under whose control he worked. It is submitted that the mere endorsement of recommendations by the recommending authority is not the criteria for sanction of leave. As per Rule 7(1) of CCS (Leave) Rules, 1972, leave cannot be claimed as a matter of right. Further Rule 7(2) of ibid rules; provide that leave may be refused/revoked by the leave sanctioning authority in exigencies of public service. In the instant case, the leave sanctioning authority, after taking into account various administrative reasons, the past behavior of the applicant of remaining absent for long spells and keeping in view the administrative inconvenience, could not accede the request of the applicant for sanction of leave.
16. The respondents have argued that the applicant was not in the habit of returning back to duty on culmination of sanctioned leave, as is evident from his submission in the OA itself. As such the decision of the leave sanctioning authority, in not sanctioning leave to him was valid in the then prevailing circumstances. The applicant was in the habit of staying away from duty and later sending the leave applications for sanction. The mere fact of leave being recommended is not the criteria for sanction of leave. The respondents have admitted the fact that the applicant attended office only on a few occasions during the period between 27.5.2003 to 5.11.2003.
17. The respondents have further argued that as per Government of India decision No.3(iii) below Rule 25 of CCS (Leave) Rules, a Government servant who was absent unauthorisedly may be taken back to duty if he has been placed under suspension. As such the applicant was allowed to join duty. The applicant was again unauthorisedly absent from 29.7.2002 to 5.12.2002 and later forwarded the leave applications for sanction. However, the leave applied for has not been sanctioned by the competent authority. Recall Memos dated 19.8.2002, 28.8.2002 and 9.9.2002 were issued to the applicant by the concerned officers which were acknowledged by the applicant, but the applicant did not report to duty. As such a charge memo under Rule 14 of the CCS (CCA) Rules was issued to him vide memo dated 5.12.2002. After acknowledging receipt of the charge memo, the applicant reported to duty on 7.1.2003 and submitted a written statement of defence wherein he again stated that he could not attend office due to his mother's ailment etc., as was stated by him on the previous occasion. He sought to be excused for his inability to get prior sanction of leave and that he be sanctioned EOL on private affairs. He requested that the charges be withdrawn and assured that he would take leave with proper sanction before proceeding on leave in future. For his earlier unauthorised absence, the applicant received the penalty order vide O.O. No.20 dated 11.7.2002, imposing the penalty of withholding his next two increments for two years, one year each, without cumulative effect.
18. The respondents have submitted that the Enquiry Officer in his report dated 12.1.2004, gave his finding that the charge of unauthorised absence without sanction of leave cannot wholly be sustained and there being no case regarding discharge of duties by the applicant, the charge of exhibition of lack of devotion to duty in violation of para 2.60 of MGP is not proved. As regards the charge that the applicant behaved in a manner unbecoming of a Government servant, the Enquiry Officer held that the charge was proved.
19. The respondents have further submitted that a copy of the inquiry report was made available to the applicant vide memo dated 12.2.2004 which was acknowledged by somebody on his behalf on 16.2.2004. As the applicant failed to make any representation, the disciplinary authority after waiting for a long time and after taking into account all the cirucmstances of the case and perusing all the records, ordered that the applicant should be reduced to the lower post of Auditor with immediate effect until he is found fit, after a period of two years from the date of the order, to be restored to the higher post of Senior Auditor vide Office Order NO.58 dated 21.7.2004 for his unauthorised absence from 29.7.2002to 5.12.2002 and the period of absence in various spells was treated as dies non for all purposes. The respondents have argued that this is the 3rd spell of the unauthorised absence of the applicant where disciplinary action was initiated and the penalty of reduction to the lower post was imposed on the applicant.
20. The respondents have argued that the appellate authority, after considering the appeal and perusing the relevant records, rejected the appeal dated 16.8.2004, upholding the penalty imposed on the applicant, vide Office Order No.58 dated 21.7.2004.
21. The respondents have further argued that the scope of the term devotion to duty as envisaged in CCS (Conduct) Rules, 1964 is very wide and that the Enquiry Officer erred in his finding. The findings of the Enquiry Officer were not disputed by the disciplinary authority. The disciplinary authority while agreeing with the findings of the Enquiry Officer relied on the fact that the charge of unauthorised absence was proved and imposed the penalty. Hence the question of communication of disagreement did not arise. The appeal of the applicant was considered as per rules by recording reasoned findings which were communicated to the applicant.
22. It is argued that for his unauthorised absence in various spells between 6.12.2002 to 4.11.2003, the applicant was issued with a charge sheet under Rule 14 of CCS (CCA) rules, vide memo dated 4.11.2003 which was acknowledged by the applicant on 4.11.2003 when he reported to duty. He stayed away from duty during the period from 6.11.2003 to 12.12.2003; 24.12.2003 to 31.12.2003 and 4.4.2004 to 12.4.2004. As the applicant did not submit his written statement of defence to the charge memo dated 4.11.2003, a memo dated 7.4.2004 was issued directing him to report to duty and submit his explanation and the said memo was acknowledged by him on 10.4.2004 and he reported to duty on 13.4.2004.
23. It is further argued that there was no communication i.e., statement of defence to charge sheet dated 4.11.2003 received in their office as stated by the applicant in his representation dated 11.5.2004. In the said representation, he stated that due to his mother's illness he could not attend office and requested not to impose any penalty as he had already been put to heavy monetary loss due to his being on EOL from August 2000 onwards due to which he was not earning any salary.
24. The respondents have submitted that the disciplinary authority not being convinced with the explanation, ordered for an enquiry by appointing an Enquiry Officer and Presenting Officer. After conducting the enquiry, the Enquiry Officer submitted his report on 1.9.2005 a copy of which was forwarded to the applicant vide memo dated 12.9.2005, which was acknowledged by him on 12.9.2005.
25. The respondents have further submitted that the disciplinary authority after perusing the charge sheet, the inquiry report, the representation of the applicant on the enquriy report and all connected documents, imposed a penalty of compulsory retirement from service vide order dated 31.5.2007 which was acknowledged by him on 1.6.2007. The appellate authority after perusing all the records pertaining to the disciplinary case, enquriy officer's report, penalty order, the appeal and the supplementary appeal submitted by the applicant, and after duly examining whether the procedure laid down in CCS (CCA) Rules was followed in the disciplinary case, whether the findings were warranted by evidence on record, and also after reviewing the attendance of the applicant from January 2003 to May 2007, gave a reasoned finding that the penalty imposed by the disciplinary authority was adequate and accordingly rejected the appeal vide order dated 17.9.2007, which was acknowledged by the applicant on 17.9.2007.
26. The respondents have argued that this was the 4th spell of unauthorised absence of the applicant where disciplinary action was initiated and the penalty of compulsory retirement imposed.
27. It is submitted that the fact that the applicant during the enquiry, could not establish the fact that he frequently moved his mother for treatment from Mangalagiri to Guntur, has been established. The applicant thus failed to convince the leave sanctioning authority, the circumstances leading to his frequent leave.
28. It is argued that the request of the applicant for transfer to Guntur was not acceded to, due to administrative reasons . It is further argued that the applicant was unauthorisedly absent for 112 days in various spells between 04/2005 to the date of his compulsory retirement viz., 31.5.2007. Hence, the contention of the applicant that he was regular to office from 04/2005 is not correct. The CGHS card and other records of the applicant contain the names of his wife and two sons only. His mother's name has not been included. It is urged that the OA deserved to be dismissed.
29. In the rejoinder, the applicant has reiterated the submissions made in the OA. It is submitted that the order passed by the disciplinary authority is clearly in violation of principles of natural justice as the disciplinary authority has disagreed with the findings of the Enquiry Officer who held that the charge of exhibition of lack of devotion to duty is not proved, without issuing show cause notice to him.
30. The applicant has argued that the charge sheet dated 4.11.2003 is without application of independent mind inasmuch as the very charge sheet containing allegation that the applicant absented himself from duty without prior sanction, from 6.12.2002 'to date' is not specific nor complete and indefinite and hence such a charge sheet was not fit for acting upon.
31. It is submitted that the Hon'ble Apex Court in several decisions had held that the punishment of compulsory retirement is excessive when the absence from duty was not continuous and the absence was reasonable and for the compelling reasons. In this case, the officer deliberately and willfully failed to sanction the leave for extraneous reasons without considering the circumstances under which the applicant had to rush to the ailing mother and the fact of his mother being hospitalised or ailing was not denied at any point of time by the Enquiry Officer or by the disciplinary authority.
32. The applicant has argued that the impugned order of punishment passed by the Senior Deputy Accountant General (Admn.) is suffering from competency as the said authority is inferior to that of the appointing authority in the case of the applicant. The applicant was appointed on 31.12.1987 as Clerk by the Principal Accountant General and the impugned order is in violation of Article 311 of the Constitution of India.
33. On 13.6.2008, this Tribunal passed an interim order directing to maintain status quo as on that day for a period of two months subject to the condition that the applicant would pay the penal rent during the above period of two months. It was further directed that the applicant would be free to vacate the quarters within the above said period.
34. During the course of arguments, the learned counsel for the applicant raised certain preliminary points and it is necessary to consider the same at the outset. He submitted that the applicant's period of absence for which he has been given punishment of compulsory retirement was later on treated as dies non and, therefore, relying upon the case of Manoj Singh v. Union of India reported at 2002 (8) SLR 705 of Jammu & Kashmir High Court, he submitted that the punishment could not survive. He submitted that the judgment in question had relied upon a decision of the Hon'ble Supreme Court of India in the case of State of Punjab v. Bakshish Singh reported at 1999 (1) ATJ 191. As against this, the respondents' counsel submitted that it was only for keeping the service record properly that the authorities treated the period of absence as dies non. For this proposition, she relied upon a judgment of the Hon'ble Supreme Court of India in the case of Delhi Transport Corporation v. Sardar Singh reported at 2004 SCC (L&S) 946. She also relied upon another judgment of the Hon'ble Supreme Court of India in the case of State of Rajasthan and others v. Sujata Malhotra reported at 2003 SCC (L&S) 1240. In that case, it was held that the order of the employer to treat a particular period of absence as Extraordinary Leave could not be treated as a punishment.
35. After considering the case law cited on both sides, we are of the view that the preliminary objection raised by the learned counsel for the applicant cannot be accepted. In the present case, the order of punishment was passed prior to the order regarding dies non which was obviously passed only for completing the service record. We, therefore, reject the preliminary objection of the learned j counsel for the applicant.
36. Another preliminary objection which was raised by the learned counsel for the applicant was that the order of punishment had been passed by an incompetent authority because the Principal Accountant General was the appointing authority for the applicant. The respondents' counsel, however, filed a copy of the order dated 31.12.1989 which is the appointment letter of the applicant wherein the appointing authority is mentioned as Deputy Accountant General (Admn.). In the face of this order, it is very clear that the order of punishment, having been passed by the Senior Deputy Accountant General (Admn.) could not be questioned on the ground of incompetency. This preliminary objection of the applicant's counsel is also rejected.
37. The learned counsel for the applicant argued vehemently that there were several reasons why the order of punishment could not be upheld. He submitted that there was no application of mind on the part of the Enquiry Officer. For example, he states that the medical certificate submitted by the applicant in respect of mother's illness did not indicate his presence for her recovery. It is also submitted by him that there was a contradiction even in the charge sheet inasmuch as in Annexure A-1 of the charge sheet, it is stated that the applicant was absent from 1.9.2003 to date. The charge sheet is dated 4.11.2003. On the other hand, it is also mentioned in ink that the applicant was on duty from 1.11.2003 to 5.11.2003 as verified from events works.IV. The learned counsel for the applicant reiterated the points made in the OA and submitted that the charges had not been proved. It may be mentioned here that the learned counsel for the applicant made several references to the enquiry report relating to earlier disciplinary proceedings in the case of the applicant. For example, he mentioned during the course of arguments that the leave applications of the applicant had been recommended by the Supervisory authority but it was found that the leave in question was applied for the period from 31.8.2002 to 25.9.2002. This leave application is appearing as Annexure A-12 and it was certainly not for the period for which the present departmental proceedings were initiated. The learned counsel for the applicant further submitted that it is very much mentioned in the charge sheet that the leave applications submitted by the applicant were not considered. He submitted that even the casual leave applications were included in the period of absence. The learned counsel for the respondents, however, submitted that the respondents, instead of sanctioning the leave, had issued Memos to the applicant directing him to report for duty and thus it was very clear that the leave applications in question had been rejected. For example, the applicant was given Memo dated 20.2.2003 wherein he was directed to report for duty within three days. He reported for duty on 3.3.2003 but again stayed away from duty from 12.3.2003. Similarly, vide Memo dated 25.7.2003, the applicant was directed to report for duty immediately. He was also informed that all his leave applications for Casual Leave, Earned Leave, Half Pay Leave and Extraordinary Leave from 16.4.2003 onwards were not considered for sanction. He reported for duty on 5.8.2003. But he again absented himself from duty from 8.8.2003 without any prior sanction of leave.
38. On careful consideration of the arguments of the learned counsel for the applicant as well as the respondents, and after perusal of necessary records and the materials on records, we are of the view that the arguments mentioned above of the learned counsel for the applicant cannot be accepted. He has not been able to point out any defect in the charge sheet, the inquiry report or in the order of the disciplinary authority which could be considered as fatal to the disciplinary proceedings.
39. There are, however, a few more submissions of the applicant's counsel which are to be considered. The learned counsel for the applicant submitted that there were compelling circumstances for the absence of the applicant. His mother was ill, as was explained to the authorities concerned. The learned counsel for the applicant further submitted that in view of the compelling circumstances with the applicant, lighter punishment could be considered. The learned counsel for the applicant has also relied upon several case law. For example, he has relied upon the case of P.N.Patel v. Union of India and others decided by Ahmadabad Bench of Central Administrative Tribunal and reported at 2002 (2) ATJ 310. The applicant's learned counsel has also relied upon 1996 (2) SLR 17 which is the judgment of the Hon'ble Supreme Court of India in the case of Malkiat Singh v. State of Punjab and others. Reliance was also placed on the case of Dr. Puzhankara Kamalam v. Indian Council of Agricultural Research rep. by its Director General and others decided by the Madras Bench of Central Administrative Tribunal reported at [1989] 9 ATC 26. The applicant has also relied upon an order of Mumbai Bench of Central Administrative Tribunal in the case of Pravin Madhusudan Mangle v. Union of India reported at 3003(3) ATJ 112. In this case, the Tribunal held that since absence of the applicant was neither willful nor intentional, the order regarding removal from service was not valid. Reliance was also placed on 2004 (2) ATJ 44 in which it was held that unauthorised absence alone could not entail punishment of removal from service unless absence was established as willful. Reliance has also been placed on the judgment of the Hon'ble Jharkhand High Court in the case Braj Kishore Singh v. The State of Jharkhand and others reported at 2005 (3) ATJ 328. It was held in this case that when sufficient cause was shown for absence from duty without leave, employee concerned should be granted leave admissible to him and punishment should be inflicted in case of willful violation of rules only. Reliance was also placed on the judgment of the Hon'ble Madras High Court in the case of S.Srinivasan v. The Presiding Officer, Labour Court, Cuddalore and others reported at 2004 (3) ATJ 298. Reliance is also placed on 2004 (3) ATJ 555 in the case of Bhagwan Lal Arya v. Commissioner of Police, Delhi and others. It was held in this case that where an employee was absent on medical grounds, order of removal from service was not valid. For similar proposition, the order of Central Administrative Tribunal, Mumbai Bench in the case of Radheshyam Tanwar v. Union of India and others reported at 2003 (2) ATJ 44 was cited. Reliance was also placed on the order of the Central Administrative Tribunal, Principal Bench in the case of Smt. Mohini Navani v. Union of India and others reported at 1996 (1) (CAT) 523. In this case, it was held that the penalty of removal was too harsh in the facts of the case. Another case cited is the case of Shri Vasna Shiska v. Union of India and others decided by Ahmadabad Bench of Central Administrative Tribunal, reported at 2003 (2) ATJ 176. In this case also, the order regarding removal from service was quashed because it was found that disciplinary authorities had not applied their mind to full facts of the case. Lastly, reliance was also placed on the judgment of the Hon'ble Madhya Pradesh High Court in the case of Rambilash Rajak v. Union of India and others reported at 2006 (3) ATJ 473. In that case it was held that where employee was allowed to join, it would be deemed that earlier unlawful absence was condoned.
40. Based on the above case law, the learned counsel for the applicant submitted that the order of removal is bad in law and required to be quashed. In any case, looking to the compelling circumstances of the applicant, it was a fit case where lighter punishment could have been considered.
41. The respondents' counsel, on the other hand, submitted that the applicant was guilty of willful absence from duty and he remained absent from office on several occasions in an unauthorised manner. He had earlier been punished for the same offence and, therefore, there was no case for interference in the order of punishment. Reliance was placed on Chairman & MD, V.S.P. & Ors v. Goparaju Sri Prabhakara Hari Babu decided on 5.3.2008 by the Hon'ble Supreme Court of India in Appeal (Civil) No.1770 of 2008. She also relied upon the case of Delhi Transport Corporation v. Sardar Singh (SC) reported at 2004 SCC (L&S) 946. Reliance was also placed in the case of State of Rajasthan and others v. Sujata Malhotra reported at 2003 SCC (L&S) 1240. In this case, the Hon'ble Supreme Court held that interference in disciplinary proceedings by Courts was not permissible unless and until any lacuna in the departmental proceeding was found. Reliance was also placed in the case of Syndicate Bank v. General Secretary, Syndicate Bank Staff Association and another reported at 2000 SCC (L&S) 601.
42. We have carefully considered the submissions on both sides, materials on record and the case law cited. We have already found that there was no serious mistake in the disciplinary proceedings which could be termed as fatal . Every thing depends upon the facts and circumstances of each case and no generalisation can be made. In the present case, the applicant had already been penalised for being absent from office without obtaining prior sanction of leave and by Office Order dated 1.6.2001, the unauthorised absence was ordered to be treated as dies non. The applicant was again on unauthorised absence from 11.6.2001 to 15.5.2002 and for this he was imposed with the penalty of withholding his next two increments for two years. Again, the applicant was unauthorisedly absent from 29.7.2002 to 5.12.2002 and it is mentioned in the charge sheet that the inquiry was in progress. The present disciplinary proceedings were for the periods of his unauthorised absence with effect from 6.12.2002 to 4.11.2003 in several spells and merely because he was allowed to join sometimes, it did not mean that the authorities had condoned the misconduct of the applicant. In fact, we find that the appellate authority has even looked into subsequent conduct of the applicant and has given a finding that there was no improvement. The Enquiry Officer has clearly mentioned in his report that as seen from the leave letters, except on two occasions, remaining 14 times, in the leave applications, the applicant had mentioned other reasons for his absence than the mother's illness. Therefore, we are of the view that in the present case, the applicant's absence had to be treated as willful. He mostly applied for leave after availing the leave and even when he joined duty he again went on unauthorised leave. Taking into account all the facts of the case, we are of the view that it is not a case where our interference is called for in any manner. The OA is accordingly dismissed with no order as to costs.
(HRIDAY NARAIN) (BHARATI RAY) MEMBER (ADMN.) MEMBER (JUDL.)