Central Administrative Tribunal - Delhi
Hemant Kumar Sharma S/O C. R. Sharma vs Union Of India Through on 29 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No. 4327 of 2010 This the 29th day of September, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Hemant Kumar Sharma S/o C. R. Sharma, Post Master General, Calicut, Kerala. Applicant (By Shri Amit Anand, Advocate) Versus 1. Union of India through Secretary, Ministry of Communication & IT, Department of Posts, Dak Bhawan, New Delhi. 2. Secretary, Union Public Service Commission, Shahjahan Road, New Delhi. 3. Secretary, Department of Personnel & Training, North Block, New Delhi. 4. Ms. R. Dorai Swamy, Secretary, Government of India, Ministry of Communication & IT, Department of Posts, Dak Bhawan, New Delhi. Respondents ( By Shri Rajesh Katyal, Advocate ) O R D E R Justice V. K. Bali, Chairman:
The applicant as his maiden visit abroad to Australia to meet his son there, made an application on 3.3.2009 for thirty days earned leave from 16.4.2009 to 15.5.2009. Simultaneously, i.e., on the same very day, he also sought permission to travel abroad in the prescribed proforma. Admittedly, the applicant was granted leave to travel to Australia to meet his son. Chief Post Master General forwarded his application to Postal Directorate on 12.3.2009, i.e., after nine days the same was made. An endorsement came to be made by Director, Headquarter at Kolkata on the concerned file on 8.4.2009 that no separate NOC (non objection certificate) was required for visiting abroad. Despite that, the Chief Post Master General would make a note on the same day that NOC was needed before the concerned officer was to leave the country. When this note was put up before the applicant, he, under bona fide belief, as is his case, that DOP&T instructions dated 1.9.2008 would cover the situation, made an official noting on the file to that effect, on which he was not communicated anything, and proceeded as per the leave programme. The respondents would term the applicant visiting abroad without obtaining NOC as delinquency and thus issued to him a memorandum dated 23.10.2009 for holding departmental proceedings for minor punishment under rule 16 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter to be referred as the Rules of 1965). The applicant took strong exception to the memorandum aforesaid, and by giving the factual scenario of his service graph and efforts on the part of some of his colleagues to tarnish his image with the sole aim to score over him, as otherwise they would not be able to make it on the basis of seniority, filed an Original Application bearing OA No.3396/2009 which came to be disposed of by this Tribunal vide a detailed order dated 4.5.2010. The judgment prepared by us would manifest that our observations as per submissions made by the counsel for the applicant were conclusive, and even though the same were to be treated as prima facie, ultimately resulted into a direction to the respondents to decide the representation of the applicant which he might make against the charge memo, as we thought that the applicant needed to have faith in the system, and if the case set up by him in the OA had merit, he should expect justice at the end of the respondents, rather than rushing to the Tribunal at that stage.
2. Learned counsel representing the applicant would contend that the system in which this Tribunal expressed faith has simply failed the applicant, and despite the observations made by the Tribunal on merits of the controversy, which should have been treated as final, the respondents have inflicted the applicant with the punishment of withholding of one increment for a period of two years without cumulative effect, not adversely affecting his pension, vide orders 26.11.2010. The learned counsel would contend that not only the charges would be absolutely frivolous and wholly unsustainable in law, but the same would also be in utter violation of the orders passed by this Tribunal in an inter partes judgment, and the respondents, in fact, in the peculiar facts and circumstances of this case, need even to be punished for contempt.
3. The controversy in issue as may emanate from the pleadings of the parties has since already been culled out by us in our order dated 4.5.2010 in the first OA filed by the applicant. Since we have already done this exercise and the points raised now may not be different that those which were raised in the OA aforesaid, we bodily lift our judgment from beginning to end, and thereafter we will deal with the aspects of the case which may emanate from the impugned order. The judgment reads, thus:
Hemant Kumar Sharma, Post Master General, West Bengal Circle, the applicant herein, takes strong exception to the memorandum dated 23.10.2009 issued to him for holding departmental proceedings against him under rule 16 of the Central Civil Services (Classification, Control and Appeal) rules, 1965. He states that the charges are totally frivolous and, in the facts and circumstances, as also under the relevant rules, cannot sustain, and further that there is a clear attempt on the part of the respondents to somehow scuttle his promotions, so that juniors of the applicant may score over him. The action against him is said to be initiated at the instance of those who are junior to him and endeavouring to supersede him in the matter of promotion, the applicant being seniormost among the batch of 1979. With a view to deal with the points raised by the applicant, as mentioned above, it would be necessary to refer to the facts culminating into filing of the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking to quash memorandum dated 23.10.2009.
2. The applicant belongs to 1979 batch of Indian Postal Service Group-A, and is presently working as Post Master General (MM) at Kolkata. On 3.3.2009, he made an application for 30 days earned leave from 16.4.2009 to 15.5.2009 prefixing the gazetted holiday on 15.4.2009 and suffixing 16th and 17th May, 2009 being Saturday and Sunday. He submitted his application to Chief Post Master General, Kolkata. The application for permission to travel abroad was submitted simultaneously in the prescribed proforma, in which it was clearly stated that the applicant was to travel to Australia, and even the leave address of Australia was indicated. The applicant has annexed with the OA copy of his leave application along with the enclosed proforma seeking permission to travel abroad, as Annexure A-2 (colly.). It is the case of the applicant that his son is living at Melbourne, and it was his first ever private visit abroad in the span of 30 years of service as a Group-A officer. The proforma also mentioned the date of commencement of journey which was 10th April, 2009 and his intended period of stay in foreign country and all necessary details which could have been required for issue of permission. On 5.3.2009, the earned leave applied for was sanctioned by the competent authority, i.e., Chief Post Master General, West Bengal Circle. Copy of the sanction order dated 5.3.2009 has been placed on records as annexure A-3. The same reads as follows:
The competent authority is pleased to approve EL without M/C for 30 days w.e.f. 16.4.09 to 15.5.09 prefixing 15.4.09 and suffixing 16.5.09 and 17.5.09 respectively being Holiday, Saturday and Sunday in favour of Sri H K. Sharma, PMG (MM) WB Circle, Kolkata-700012 with the existing linking arrangement. But it is also mentioned that though leave has been granted it may be cancelled in the interest of service since General Election has been announced to be held in April-May 2009.
Formal leave sanction memo will be issued on receipt of relevant charge reports. On 5.3.2009 itself, the applicant applied for two days restricted holidays for 13th and 14th April, 2009, which was sanctioned on 12.3.2009. The applicant refers to instructions issued by DOP&T regarding grant of permission to travel abroad by Government servants that came into being on 18.5.1994 and reiterated on 1.9.2008. OM dated 18.5.1994, insofar as the same is relevant, reads, thus:
3. However, separate permission may not be necessary where a Government servant has indicated his intention of leaving headquarters/ station along with leave address while applying for leave. The leave application form prescribed under the CCS (Leave) rules, 1972 contains necessary column in this regard. In case the leave applied for the purpose of visiting foreign country is sanctioned, it would imply that permission for going abroad is also granted and therefore leave sanctioning authorities should keep this aspect in mind while granting the leave applied for. OM dated 1.9.2008 clarifying the position reiterating the instructions dated 18.5.1994, reads as follows:
2. References are being received regarding the competent authority whose permission is to be taken by the leave sanctioning authority before sanctioning leave to a Government servant to go abroad. It is clarified that the competent authority as per the aforesaid Office Memorandum dated the 7th November, 2000 is to the competent authority in terms of the instructions, if any, issued by the Cadre Authority or the administrative Ministries/ Departments themselves. Department of Personnel and Training has not issued any instructions in this regard in respect of the Central Government servants. In the absence of any such instructions, the approval of the leave sanctioning authority would imply approval to the visit abroad also. It may be ensured that the leave applications in such cases invariably mention the purpose of going abroad. It is the case of the applicant that DOP&T is the nodal authority to issue instructions under CCS (Conduct) Rules and also FRSR under the Business Rules of the Government of India, and its orders are binding on all Central Government departments. It is further the case of the applicant that he, in bona fide belief and in view of the aforesaid instructions, arranged for his travel and booked air tickets and made other necessary arrangements after sanction of leave. In the meantime, however, the office of chief Post Master General forwarded the application of the applicant to the Postal Directorate on 12.3.2009. Director, Headquarter at Kolkata, however, made endorsement on the concerned file on 8.4.2009 that no separate NOC (no objection certificate) is required for visiting abroad. The chief Post Master General, however, made a note on the same date that NOC is needed before the concerned officer leaves the country and also that the Directorate had been reminded by FAX for NOC. This note was directed to be put up before the applicant. The note did not cancel the leave already granted nor was the applicant asked to postpone his trip abroad. Finding that DOP&T instructions dated 1.9.2008 would cover the situation and acting on bona fide belief, it is the case of the applicant, he made an official noting on the file to that effect, on which he was not communicated anything and thus, he proceeded as per his leave programme. On 13.4.2009 Director, Headquarter sought clarification from the Postal Directorate that in view of instructions dated 1.9.2008 of DOP&T, whether any permission from the Directorate is required, once the leave for visiting abroad has been sanctioned by the competent authority. On 9.4.2009 the applicant applied for one days casual leave for his medical check-up as prelude to commencement of his foreign travel, which was due to start on 10.4.2009. He proceeded to Melbourne as per schedule and returned to India as per his programme indicated in his leave application. On 18.5.2009, the applicant, however, received a letter dated 6.5.2009 under signatures of Assistant Director General (SGP) calling for his explanation for proceeding on foreign visit without awaiting NOC from the Directorate. The applicant submitted his detailed reply on 25.5.2009 wherein he also pointed out that not only the Government instructions on the subject are very clear, but also that he had complied fully with the instructions on the subject and he was not informed at any stage during the span of more than one month that his application for traveling abroad had been declined by any of the authorities, and further that the very purpose of the travel was to visit his son in Australia and leave was already sanctioned which would also imply that in terms of Government of India instructions, permission was granted to travel abroad. On 30.6.2009, DPC was held for promotion to the post of Chief Post Master General which is a Higher Administrative Grade post. Even though, the applicant was seniormost in the gradation list, he was not recommended for promotion, though there was no adverse communication during the reckoning period considered by the DPC. Constrained under the circumstances, as mentioned above, he filed an Original Application bearing OA No.2622/2009 before this tribunal, which, we are told during the course of arguments, was disposed of vide order dated 12.3.2010. It is the case of the applicant that he has reasons to believe that the respondents are determined not to promote him to the Higher Administrative Grade and, therefore, only the memorandum of charge dated 23.10.2009 on the allegation that the applicant proceeded abroad without taking necessary permission of the authority concerned, has been issued, and that a frivolous objection has been added about combining casual leave with the gazetted holiday of Good Friday, which is also in terms of Government of India decision No.2 dated 7.10.1960 below Rule 22 of the CCS (Leave) Rules, copy whereof has been placed on records as Annexure A-11. It is pleaded that till date the respondents, as per their own case, have not been able to show any good reason for non-sanctioning of permission to the applicant to go abroad, if at all the same was required. Application of the applicant seeking leave was given on 3.3.2009, along with a proforma on which sanction to go abroad was to be granted, with all its minute details. The leave was sanctioned on 5.3.2009. However, the office of Chief Post Master General forwarded the application to the Postal Directorate on 12.3.2009. Director, Headquarter at Kolkata made an endorsement on the concerned file on 8.4.2009 that no separate NOC was required for visiting abroad. It is the Chief Post Master general who made a note on the same day that NOC was needed and that the Directorate had been reminded by FAX for NOC. If at all, NOC was required, why leave was sanctioned without issuing the same, and further why it was not issued for over a month, and the endorsement came to be recorded only on 8.4.2009, i.e., just a day or two before the applicant was to commence his journey. The applicant states that he has followed the prescribed procedure according to the Government of India instructions issued by DOP&T both in letter and spirit. It is the case of the applicant that after he filed OA No.2622/2009, the respondents have taken a vindictive stand against him. It is averred that presently the CVO (chief vigilance officer) of the Department of Post is one Shri Ashutosh Tripathi who is posted as Deputy Director (Vigilance) since December, 2009. The disciplinary case against the applicant is being drafted, handled and processed by him. He is said to be junior to the applicant by two years in service and belongs to 1981 batch, whereas the applicant belongs to 1979 batch. The month and year of retirement of both the applicant and CVC, however, is stated to be same. It is pleaded that he is gunning for the applicant to eliminate him once and for all from reckoning for promotions. The applicant is due to retire in December, 2016. By virtue of date of birth, the applicant shall be the last person to retire from 1979 batch, and in the normal course of promotions and retirements, the applicant would become the Member of Postal Services of Board, of which there are seven members, by 2013 end. In view of his position in the gradation list the applicant would be eligible for promotion to the post of Secretary upon retirement of Shri S. K. Sinha in July, 2010. In case the applicant is eliminated from reckoning for promotion to higher ranks for which, it is pleaded, clear attempt is being made as aforesaid, Shri Ashutosh Tripathi would get accelerated promotion to Postal Services Board and can become Secretary (Posts) which, otherwise would not happen if the applicant remains in reckoning for normal promotions. The proceedings initiated by the respondents, the applicant avers, are in total disregard and violation of relevant instructions emanating from OMs dated18.5.1994 and 1.9.2008.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their reply contested the cause of the applicant. By way of preliminary objection, it is stated that the Application is misconceived and has been filed with mala fide intention to harass the respondents, and further that the applicant has not come to this Tribunal with clean hands, and has suppressed material facts from the Tribunal. The impugned memorandum dated 23.10.2009, it is pleaded, is not a final order as per the definition of order in Section 19 of the Act of 1985, but only conveys that it is proposed to take action against the applicant under rule 16 of the Rules of 1965 for prima facie misconduct as stated in the statement of imputation of misconduct given in the annexure to the said memorandum, and that the applicant was given opportunity to submit his representation against the proposal as per requirements of rule 16. It is then pleaded that the applicant has no locus standi to file present Application, and that the applicant was given opportunity to submit representation against the proposal in the impugned memorandum, but instead of availing this opportunity, he has filed present Application. It is pleaded that the applicant has not submitted any representation against the impugned memorandum dated 23.10.2009, and the OA would thus be premature, the applicant having not exhausted departmental remedies available to him. On merits of the case, it is inter alia pleaded that the applicant proceeded on leave abroad without receiving NOC as required vide Department of Posts letter dated 2.11.2000, read with DOP&T OMs dated 7.11.2000 and 1.9.2008, and ignored the order of controlling officer dated 8.4.2009 that NOC was needed before the applicant could left the country. It is then pleaded that the applicant applied for casual leave for 9.4.2009 which was in combination of holidays/RH/EL and remained absent from duty on 9.4.2009 without sanction, and that he failed to ensure compliance of rule 11 of CCS (Leave) Rules and, therefore, for good and sufficient reasons, disciplinary proceedings under rule 16 of the Rules of 1965 have been initiated against him. Without disputing that the applicant was indeed given sanction of leave, it is, however, pleaded that sanction of earned leave from 16.4.2009 to 15.5.2009 could not by any means imply permission to travel abroad from 10.4.2009. It is pleaded that NOC was not given for private foreign visit of the applicant. The respondents in their defence rely upon instructions dated 7.11.2000 and OM dated 18.5.1994. It is pleaded that vide OM dated 7.11.2000 it was decided that while granting leave the sanctioning authority shall take prior approval, if required, for permitting the officer to go abroad. OM dated 1.9.2008 is stated to have been issued in clarification of OM dated 7.11.2000 that the competent authority as per OM dated 7.11.2000 is the competent authority in terms of instructions issued by the cadre authority or the administrative Ministry/Department, and that the DPO&T has not issued any instructions in respect of Central Government servants, and further that in absence of any such instructions, approval of leave sanctioning authority would imply approval to visit abroad. Implicit permission with the leave sanctioning authority would be applicable only where the cadre authority or the administrative Ministry/Department has not issued any instructions regarding permission to visit abroad. Department of Posts issued specific instructions vide letter dated 2.11.2000 stipulating that cases of Group-A officers are to be referred to the Postal Directorate for decision. It is thus stated that sanction of leave by the leave sanctioning authority would not have the implied approval to visit abroad. The allegations of motivated proceedings against the applicant are denied. The averment of the applicant that the impugned memorandum was issued with ill motive for not promoting the applicant to HAG is denied as totally false, baseless and purely imaginary. The respondents have denied that they have added any frivolous charge in the impugned memorandum regarding combining of casual leave with holidays/RH/EL. It has been clearly stated in the statement of imputations of misconduct to the impugned memorandum that according to rule 11 of the Leave Rules, casual leave cannot be combined with any kind of leave admissible under the said Rules. It is pleaded that by availing RH on 13.4.2009 and 14.4.2009 and all other intervening dates between 9.4.2009 and 16.4.2009 being holidays, casual leave requested by the applicant on 9.4.2009 was in combination of the earned leave sanctioned from 16.4.2009, which was in violation of rule 11 of the Leave Rules. It is then pleaded that the controlling officer of the applicant had issued specific instructions that the applicant could not proceed abroad without NOC, which the applicant failed to comply with.
4. Before we may proceed any further in the matter, we may briefly mention the grievance ventilated by the applicant in his earlier OA No.2622/2009. The same would be reflected from the interim order that we had passed while issuing notice on 15.9.2009, which, insofar as is relevant, reads as follows:
Inter alia contends that because of extraneous considerations two false FIRs came to be registered against the applicant in 2003. Both the FIRs were thoroughly investigated thrice and the investigating agency found no case made out against the applicant on merits. With the approval of the Court the said FIRs were sent untraced and the findings of the investigating agency were accepted by the Court in writing. Despite that counsel for applicant further contends that the case of the applicant for promotion to the post of Chief Post Master General has been kept in sealed cover, which by no standards, no law or even imagination could be done. It appears that before the matter came up for final disposal, the respondents realized their mistake and had already opened the sealed cover, but had found the applicant not fit for promotion, as some of his ACRs were not commensurate to the benchmark. On the facts and on the basis of the case law, we disposed of the OA aforesaid by observing/directing as follows:
..we dispose of this Application directing the respondents to ignore the below benchmark uncommunicated ACRs of the years 2006-07 and 2007-08, and instead to take into consideration the earlier two ACRs for the years 1999-2000 and 2000-01, and if the same may be commensurate to the benchmark, to constitute a review DPC to consider the case of the applicant for promotion to the HAG post of Chief Post Master General. If in such consideration, the applicant is found fit for promotion, he shall be accorded the same from the date he was eligible, even though notionally, and would get the pay of the promotional post from the date he assumes charge of the said post. Order in the said OA was passed on 12.3.2010. In consequence of directions as referred to above, the applicant shall have to be considered for promotion from the date DPC met for the purpose, i.e., 30.6.2009. Admittedly, the memorandum now issued to the applicant has come into being four months after the DPC had met. The interim orders in the OA referred to above were passed on 15.9.2009, and it is about forty days from there that the impugned memorandum has been issued.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. The facts on which there may be no dispute reveal that the applicant had moved application on 3.3.2009 seeking leave from 16.4.2009 to 15.5.2009 pre-fixing 15.4.2009 being gazetted holiday, and suffixing 16.5.2009 and 17.5.2009 being Saturday and Sunday. This application was submitted to Chief Post Master General. Further, application seeking permission to proceed abroad was submitted simultaneously in the prescribed proforma, copy whereof has been annexed with the present Application as Annexure A-2 (colly.). The same appears to be a printed proforma. Some of the relevant columns thereof would need a mention. Against the column Nature and period of leave applied for and date from which required, it is mentioned, 30 day E.L. from 16/4/09 to 15/5/09, prefixing 15/4/09 G.H. and suffixing 16 & 17/5/09 Saturday & Sunday. Against the column Grounds on which leave is applied, the applicant mentioned, Foreign travel. In the proforma application for traveling abroad, as against the column Name of foreign country to be visited, the applicant mentioned, Australia. In the enclosed proforma application for No Objection Certificate, against the column Date of commencement of journey, it is mentioned, 10.4.2009. The order sanctioning leave vide dated 5.3.2009 has since already been reproduced in the earlier part of the judgment. The applicant on 5.3.2009 itself addressed an application to chief Post Master General seeking grant of two days restricted holiday on 13.4.2009 and 14.4.2009 on the occasion of Vishu and Mesadi. This leave application was also allowed. This application, from the records annexed with the OA, it would appear, came up before the concerned official on 5.3.2009 who made the following noting:
Shri H. K. Sharma, PMG, MM has applied R.H. on 13-4-09 & 14-4-09.
The said R.H. may be granted on the arrangement that the PMG (KR) as a linking officer may look after the work of PMG, MM on aforesaid days in addition to her own without any extra remuneration, if kindly agreed.
Sd/- 5/3/09 AP(S) On the same day, proposed R.H. was granted by making the following note:
Sri H. K. Sharma, PMG (MM) C.O. has applied for 2 (two) days RH on 13/4/09 & 14/4/09 on the occasion of VISHU & MESADI vide 52/C. In this connection it is mentioned that the officer has already been granted E/L for 30 days w.e.f. 16.4.09 to 15.5.09 (prefixing 15/4 & suffixing 16/5 & 17/5, being the holiday, Saturday and Sunday) in c/w travel to Australia, from 10/4/09.
Now it may kindly be considered as to whether aforesaid R/H may be granted on the arrangement that PMG (KR) will look after the work of PMG (MM) in addition to his own without any extra remuneration.
Submitted.
Sd/- 5/3/09 Ch. PMG RH proposed granted. Two orders dated 5.3.2009, as mentioned above, would clearly manifest that the applicant was granted leave from 16.4.2009 to 15.5.2009, pre-fixing 15.4.2009 and suffixing 16.5.2009 and 17.5.2009. He was also granted leave for 13.4.2009 and 14.4.2009. The applicant was to start his journey to Australia on 10.4.2009, which is specifically mentioned in the proforma for no objection certificate, attached with the leave application, as also in the orders referred to above. There is no dispute insofar as, 11.4.2009 and 12.4.2009 being Saturday and Sunday are concerned. The applicant, it further appears, was sanctioned leave in connection with travel to Australia w.e.f. 10.4.2009. The statement of imputations of misconduct or misbehaviour against the applicant, as may emanate from the annexure attached to the memorandum dated 23.10.2009, insofar as the same is relevant, reads, thus:
Therefore, it is alleged that the said Shri H. K. Sharma proceeded on leave abroad without receiving No Objection Certificate for the same as required vide Deptt. of Posts letter No.3-3/2000-SPG dated 02-11-2000 read with DOP&T OM No.11013/81-2000-estt.(A) dated 07-11-2000, and DOP&T OM No.11013/7/2004-Estt.(A) dated 01.09.2008, and that for this he also ignored the instructions of his controlling officer dated 08.04.2009 that NOC was needed before the officer left the country. It is also alleged that by applying for casual Leave for 09-04-2009 which was in combination of holidays/RH/EL and remaining absent from duty on 09-04-2009 without sanction, the said Shri Sharma failed to ensure compliance of rule 11 of CCS (Leave) Rules, 1972. Perusal of the statement of imputations of misconduct or misbehaviour would thus show that the applicant was alleged to have proceeded on leave abroad without receiving no objection certificate as required vide Department of Posts OM dated 2.11.2000 read with DOP&T OMs dated 7.11.2000 and 1.9.2008, and also ignored instructions of his controlling officer dated 8.4.2009 that NOC was needed before he could leave the country. It was also alleged that even though, he had applied for casual leave for 9.4.2009 which was in combination of holidays/RH/EL, he remained absent from duty on the said date without sanction. It may be recalled that on 9.4.2009, the applicant was to be medically examined for his taking journey to Australia, which was to commence on 10.4.2009.
6. From the facts as fully detailed above, what clearly emerges is that the applicant even though, was granted leave to go abroad, period whereof was also specified, he is yet being asked to explain his conduct as to why he left the country without obtaining NOC, for which he also ignored the instructions of his controlling officer dated 8.4.2009. His application dated 3.3.2009 for earned leave was sanctioned by the CPMG, West Bengal Circle on 5.3.2009. The CPMG forwarded the application to the Postal Directorate on 12.3.2009, and the Director Headquarter made an endorsement on the concerned filed on 8.4.2009 that no separate NOC is required for visiting abroad. In these circumstances, when leave was already granted by CPMG himself on 5.3.2009 and he had sent the proforma seeking NOC to the Postal directorate on 12.3.2009, and the Director Headquarter had mentioned on the file on 8.4.2009 that no separate NOC was required, why the CPMG would have made a note on the same day that NOC is needed before the concerned officer leaves the country. What was the need of reminding the Directorate which had already mentioned that no separate NOC was required. Further, the question arises as to whether, if at all NOC was required, why the CPMG, who had himself granted leave to the applicant, should have raised an objection just two days before the applicant was to leave abroad. The applicant had already made his plans, purchased tickets and made all arrangements for his travel by that time. Of course, the applicant, on the basis of instructions, states that once leave to visit abroad is granted, NOC would not be needed at all, but assuming that it would be required, who was responsible in delaying the same. Was it the applicant? The answer has to be an emphatic NO, and if the same CPMG who had allowed his application without awaiting orders of the Postal Directorate with regard to NOC, papers regarding which were sent on 12.3.2009, which were received back on 8.4.2009 with the endorsement that no separate NOC would be required, who would be at fault? Further, instructions governing the field as relied upon by the applicant, it prima facie appears to us, may not require any NOC. Still further, would the allegations leveled against the applicant amount to misconduct. It may be recalled that it was the first ever private visit of the applicant abroad in the span of 30 years of service as a Group-A officer, and that too, to be with his son, who admittedly, was in Australia. The applicant went and came back as per schedule. There are no allegations of mala fides against him. At the most, it may appear to be a case of some infraction of rules, and the delay, if at all NOC was required, is not attributable to the applicant. Insofar as, the added allegation with regard to the applicant not being granted leave for 9.4.2009 is concerned, we may only mention that the applicant had applied for leave, and it is not the case of the respondents that the same was refused. If the applicant had made an application for leave on 9.4.2009, on which no order was passed, and if he had availed leave for the said day as he had to be medically examined as prelude to his travel abroad, can that be said to be a misconduct. We may mention here that this charge has been added in the memorandum dated 23.10.2009. The applicant was not asked for his explanation preceding issuance of the charge memo to him. The record will bear it out that the CPMG addressed a letter to the applicant dated 18.5.2009, where a copy of the Directorate letter dated 6.5.2009 was enclosed for favour of perusal and taking necessary action. Letter dated 6.5.2009 reads as follows:
I am directed to refer to your office letter No.SFA/P-11/NOC/GO dated 12-3-2009 on the above mentioned subject and request you to kindly confirm whether the officer proceeded on foreign visit without awaiting NOC from the Directorate. This office may kindly be informed under what circumstances the officer was allowed to proceed on leave to visit abroad without the approval of the directorate. You are requested to seek the explanation of Shri H. K. Sharma, PMG (MM), West Bengal circle for visiting abroad without no objection certificate from the directorate. The applicant was required to furnish explanation with regard to allegations subject matter of letter dated 6.5.2009, which did not contain anything with regard to the applicant not attending to his duties on 9.4.2009 as his leave application for he said day was not sanctioned.
7. There would have been no difficulty for us to answer the questions as have been referred to above, but what we find from the records of the case is that one objection that has been taken in the counter reply is that the applicant, instead of giving any reply to the impugned charge memo, has rushed to this Tribunal, and that he has not submitted any reply against the said memorandum. Having pondered over the issue and having given our serious thoughts, we have arrived at the conclusion that the applicant must have faith in the system. May be, at the time when the applicant gave his explanation, the respondents did not give a serious look at the same thinking that they would look into the matter on receipt of detailed reply to the charge memo from the applicant. The allegation made by the applicant against the respondents that they are hell bent upon tarnishing his service career has been refuted, and present may not be the stage to give any findings on the same.
8. In totality of the facts and circumstances of this case, we are of the view that the interest of justice would be served if the applicant makes a comprehensive representation against the charge memo dated 23.10.2009, which shall be given a serious thought by the concerned authority in the light of the points raised by the applicant in the present Application, which have been mentioned above. As to whether in the facts and circumstances as fully detailed above, the applicant is at fault at all, and the allegations subject matter of charge would really amount to misconduct, needs a serious look. Let the applicant file his representation, which would be considered and disposed of by the concerned respondent as expeditiously as possible and preferably within a period of six weeks from the date of receipt of the representation. There cannot be any immediate apprehension for the applicant not being further promoted, as surely his promotion on the post of Chief Post Master General in the Senior Administrative Grade has to be considered without taking into consideration the present proceedings, as the same came about after the DPC for promotion on the said post had already met. We, however, clarify that the present proceedings will not come in the way of the applicant in considering him for promotion on the post of Chief Post Master General. We are sanguine that the respondents will give a serious thought to the issues raised by the applicant and would always keep in mind that India is a welfare State and the Government is a model employer, and further that small infractions of rules may not necessarily result into departmental proceedings, which, through experience, we all know, take years in finalization.
9. Before we may part with this order, we may mention that if the applicant suffers an adverse order, it shall always be open for him to re-agitate the matter by filing a fresh Application.
10. With the directions/observations as made above, this Original application is disposed of. There shall, however, be no order as to costs.
4. One of the primary issues in the present case that has been raised is that when the applicant had not only applied for leave to go to Australia to meet his son, but simultaneously on the same very day had sought NOC to travel abroad, assuming that separate orders were required to be passed on the request of the applicant to obtain NOC, who was responsible for passing orders thereon, and why orders were not passed on his request all through the matter remained pending with the respondents, and an objection came to be raised just a couple of days before the applicant was to travel abroad that he should have obtained NOC to travel abroad. We have dealt with this aspect of the case in our order dated 4.52010. In para 6 of our judgment, we observed that Further, the question arises as to whether, if at all NOC was required, why the CPMG, who had himself granted leave to the applicant, should have raised an objection just two days before the applicant was to leave abroad. The applicant had already made his plans, purchased tickets and made all arrangements for his travel by that time. Of course, the applicant, on the basis of instructions, states that once leave to visit abroad is granted, NOC would not be needed at all, but assuming that it would be required, who was responsible in delaying the same. Was it the applicant? The answer has to be an emphatic NO, and if the same CPMG who had allowed his application without awaiting orders of the Postal Directorate with regard to NOC, papers regarding which were sent on 12.3.2009, which were received back on 8.4.2009 with the endorsement that no separate NOC would be required, who would be at fault? The applicant pressed this point as may emanate from the impugned order itself, wherein all the points raised by him have been mentioned. The said point was raised by the applicant, is enumerated in para 3(l) in the impugned order. It is inter alia mentioned therein that, It has been amply made clear above that no separate NOC was required, yet even if it was required then whose responsibility it was to issue it in time especially when I had applied for permission to travel abroad well 39 days before my declared date of departure and whose duty it was, as per the rules, to obtain it? The answer is very clear and emphatic. It certainly was not my responsibility, as it is very clear from para 2 of the DOP&T OM dated 07-11-2000 that it was for the leave sanctioning authority, if so required, to obtain prior approval from Postal Directorate and not for me to obtain it. We need not refer to the further elaboration on the point enumerated in para 3(l). The respondents have rejected this plea by observing as follows:
l) Sanctioning of leave by the Leave Sanctioning Authority before receiving permission from the Directorate, non-intimation of the delay in processing of the request for permission, or non-cancellation of the leave by the leave sanctioning authority upon non-receipt of the permission, as alleged by the CO, may not absolve the CO of his responsibility as a senior officer to ensure that he proceeded abroad only after receiving permission from the competent authority. Since it is clear from the instruction dated 02-11-2000 that permission was to be issued by the Directorate, in the absence of specific orders of the Directorate, and in view of the specific orders of the CPMG dated 08-04-2009, the CO could not have assumed that permission to travel abroad was implicit in the leave sanction dated 05-03-2009. We are certain that the point raised by the applicant has gone abegging. In fact, it appears to be a deliberate attempt on the part of the respondents to side-track the issue, as by doing so, it is quite apparent that they have not even cared to look into this aspect of the matter, as commented by the Tribunal in its order dated 4.5.2010. It is not a case where the applicant may have remained remiss in not making a request to travel abroad, and for that purpose to obtain NOC. Admittedly, he applied for NOC the very day he made the application for grant of leave to travel abroad. It gathered dust in the office of the respondents. If grant of NOC was necessary, and this was to be done by the respondents, why they were sitting over it even after the leave to the applicant to go abroad had since already been sanctioned. We have already given the sequence of the events in narrative. We may now specify the dates in that regard in seriatim:
(1) The applicant made two applications simultaneously one for grant of leave to travel abroad to meet his son, and the other to obtain NOC to travel abroad, on 3.3.2009.
(2) On 5.3.2009 the earned leave applied for by the applicant was sanctioned by the competent authority, i.e., Chief Post Master General, West Bengal Circle. Copy of the sanction order dated 5.3.209 has since already been reproduced in our earlier judgment.
(3) Office of the CPMG forwarded the application of the applicant to the Postal Directorate on 12.3.2009.
(4) Director, Headquarter at Kolkata, made endorsement on the concerned file on 8.4.2009 that no separate no objection certificate (NOC) was required for visiting abroad.
(5) CPMG made a note on the same date, i.e., 8.4.2009, that NOC is required before the concerned officer leaves the country, and also that the Directorate had been reminded by FAX for NOC.
(6) The applicant applied for casual leave for 9.4.2009, which was in combination of holidays/RH/EL.
5. From the facts as culled out above, what clearly emerges is that the authorities sat over the NOC applied by the applicant for visiting abroad all the while, and reacted on that only a couple of days before the applicant was to be on leave and then to proceed abroad. The question that stares everyone in the face is as to who was responsible for all this mess, if at all the plea of the applicant that no such NOC is required, is to be rejected. We have no manner of doubt, having already observed in our order dated 4.5.2010 that it is the respondents, and in particular the CPMG, who was responsible for the same. Actually, the CPMG should be blamed for not according sanction and instead putting a note, as mentioned above, at the eleventh hour when the applicant was to be on leave and to go abroad. Was there any earthly reason for which the NOC could be refused? It is not even the case of the respondents that circumstances existed by which the NOC could be refused, and if that be so, what was the need for the concerned authority, and in particular the CPMG, who was told in no uncertain terms that no NOC was required, to record a note that it is required. We repeat and reiterate, if required, what were the reasons not to accord sanction to the applicant and grant NOC. We are of the firm view that it is the CPMG who messed up the whole issue and for the blame for which he is exclusively responsible, the applicant has been made a scapegoat. As regards other issues we have mentioned and adverted to in our judgment dated 4.5.2010, our views may have been tentative, but on this issue our finding was positive and yet, the respondents would meet this objection raised by the applicant as mentioned above, by simply side-tracking it. Surely, if this point was to be gone into, a finding could be recorded that the CPMG is responsible, and if there is any dereliction of duty, it is on his part, and as the respondents wanted to avoid such finding, they would not even advert to it. On our finding on this issue alone, this OA needs to be allowed. However, we will deal with other aspects of the case as well, and in particular, as to whether instructions on the issue required any NOC when leave to travel abroad had since already been granted. In that regards, whereas the applicant would rely upon the OMs issued by DOP&T, which is the nodal Ministry in the case of Central Government employees, the respondents would bank upon a copy of letter dated 2.11.2000 from the Department of Posts, New Delhi. It is their case that the instructions contained in the letter aforesaid would hold the field. We will deal with the aspect of the case as to whether the instructions contained in letter dated 2.11.2000 would govern the field or that the DOP&T instructions relied upon by the applicant would have precedence over the same, but even going by the instructions dated 2.11.2000, we are of the view that the same would not cover the situation as obtainable in the facts of the present case. It may be recalled that the present is a case where the applicant had applied for earned leave to go abroad to meet his son in Australia, and his request was specifically granted. It is mentioned in the instructions aforesaid that It has now been decided that Head of Circles may decide the cases of all officers and staff working under them for grant of NOC for obtaining Indian passport. They may also decide the cases of grant of NOC for visiting abroad in respect of staff members and officers up to Group B level. The cases of Group A officers for grant of NOC for visiting a foreign country may be referred to Directorate for decision. The Heads of Circles will, however, forward their own cases both for obtaining Indian passport and visiting abroad to the Directorate. These instructions do not at all deal with a situation where an employee may have applied for leave to go abroad and which may have been granted. This is a simple case of visiting a foreign country, and as regards Group A officers, as the applicant is, the matter has to be referred to the Directorate for decision. The instructions to which we shall immediately advert, issued by the DOP&T deal with a situation where leave to travel abroad has since already been sanctioned, and as to whether in the circumstances NOC is required or not. We repeat that the instructions dated 2.11.2000 would not deal with such a situation. Be that as it may, all that the instructions require is that the cases of Group A officers for grant of NOC for visiting a foreign country may be referred to the Directorate for decision. Assuming the same would apply, the request made by the applicant should have been sent to the Directorate, and it was indeed sent, and the Directorate mentioned that there was no need to pass separate orders as regards NOC. Looked from any angle, the instructions relied upon by the respondents would not at all be applicable, and if applicable, the fault, once again, lay at the end of the respondents in not granting NOC to go abroad to the applicant, and instead simply to say that is it required. If required, we have already mentioned above, why no order was passed on the same instead of simply mentioning that it is required. As regards applicability of the instructions dated 2.11.2000 and the one issued by the DOP&T, we may mention that in the impugned order itself, the respondents have mentioned that the Department of Posts cannot abrogate or supersede the orders of the DOP&T in respect of CCS (Conduct) Rules. In para (h), while dealing with the plea of the applicant that DOP&T instructions would be applicable, it has been mentioned as follows:
(h) It is correct that the Deptt of Posts cannot abrogate or supersede the orders of the DOP&T in respect of the CCS Conduct Rules. It is seen that, in this case, there has been no violation of DOP&T instructions, (emphasis supplied) but on the contrary, the DOP&T instructions dated 01-09-2008 are relied upon. A perusal of the extracted portion of the order would manifest that DOP&T instructions are binding. We will refer to instructions dated 1.9.2008 hereinafter, but before that, we may make a mention of all the instructions that are available on the issue. The first instructions that came to be issued in that regard are dated 18.5.1994 issued by DOP&T. The relevant para 3 of the instructions aforesaid, reads as follows:
3. However, separate permission may not be necessary where a Government servant has indicated his intention of leaving headquarters/station along with leave address while applying for leave. The leave application form prescribed under the CCS (Leave) rules, 1972 contains necessary column in this regard. In case the leave applied for the purpose of visiting foreign country is sanctioned, it would imply that permission for going abroad is also granted and therefore leave sanctioning authorities should keep this aspect in mind while granting the leave applied for. In the case of officers who are competent to sanction leave for themselves they should obtain permission for leaving station from their superior authority. The next instructions on the issue are dated 7.1.2000 issued by DOP&T, which read as follows:
Sub.: Requirement of taking prior permission by Government servants for leaving station/ headquarters Clarification regarding.
The undersigned is directed to refer to this Departments O.M. No.11013/7/94-Estt.(A) dated 18th May, 1994 on the subject mentioned above in which it has inter-alia been clarified that separate permission may not be necessary where a Government servant has indicated his intention of leaving headquarters/station along with leave address while applying for leave. It has also been clarified that in case leave applied for the purpose of visiting foreign country is sanctioned, it would imply that permission for going abroad is also granted and, therefore, leave sanctioning authority should keep this aspect in mind while granting the leave applied for.
2. The above instructions have been reviewed and it has been decided that while granting leave the sanctioning authority shall take prior approval, if required, for permitting the officer to go abroad as per the existing instructions.
3. All Ministries/Departments are requested to bring these instructions to the notice of all concerned under their control and ensure that these are strictly followed. Perusal of the instructions referred to above would demonstrate that in case a person may apply for leave to go abroad and the same is granted as well, no separate NOC is required. As regards the instructions of 1994, the only modification brought about in the said instructions in 2000 is that while granting leave, the sanctioning authority shall take prior approval, if required. This part, if at all, was to be complied by the sanctioning authority. The instructions relied upon by the respondents dated 1.9.2008, read thus:
Subject: Requirement of taking prior permission by Government servants for leaving station/headquarters for going abroad while on leave.
The undersigned is directed to refer to Department of Personnel and Trainings O.M. No.11013/8/2000-Estt. (A) dated the 7th November, 2000 on the above subject and to say that in para 2 thereof, it was conveyed that while granting leave the sanctioning authority shall take prior approval, if required, for permitting the officer to go abroad as per the existing instructions.
2. References are being received regarding the competent authority whose permission is to be taken by the leave sanctioning authority before sanctioning leave to a Government servant to go abroad. It is clarified that the competent authority as per the aforesaid Office Memorandum dated the 7th November, 2000 is to the competent authority in terms of the instructions, if any, issued by the Cadre Authority or the administrative Ministries/ Departments themselves. Department of Personnel and Training has not issued any instructions in this regard in respect of the Central Government servants. In the absence of any such instructions, the approval of the leave sanctioning authority would imply approval to the visit abroad also. It may be ensured that the leave applications in such cases invariably mention the purpose of going abroad. Primarily, the instructions aforesaid are by way of clarification as to who would be the competent authority whose permission is to be taken by the leave sanctioning authority before sanctioning leave to a Government servant to go abroad. It has been clarified that the competent authority as per instructions dated 7.11.2000 would be the competent authority in terms of the instructions, if any, issued by the cadre authority or the administrative Ministries/Departments themselves. The other part of the instructions aforesaid states that the DOP&T has not issued any instructions in this regard in respect of the Central Government servants, and that in the absence of any such instructions, approval of the leave sanctioning authority would imply approval to the visit abroad also. These instructions, in no way run counter to the plea raised by the applicant. The same rather support the cause of the applicant. If leave sanctioning authority and the competent authority may sanction leave to a Government servant to go abroad, it is clear that no separate NOC is required. The instructions on the subject apart, it belies common sense as to why NOC to go abroad would be separately required if leave of an employee specifically asked to go abroad has since already been allowed, particularly when both the orders, be it grant of leave to go abroad or NOC to go abroad, are to be accorded by the same person.
6. It appears to us, from totality of the facts and circumstances of the case, and the background which we have already given, that the respondents were pre-determined to inflict an order of punishment upon the applicant. Simple issue as involved in the present case, which had only one answer, and that was to hold that there is no delinquency on the part of the applicant, has been sought to be complicated and confused, and the confusion, it appears, has been created simply with a view to punish the applicant.
7. The third point that we have mentioned in our order dated 4.5.2010 was as to whether small infraction of rules, in a welfare State as India is, may need to be blown out of proportions, and whether small mistakes made by the officers unintentionally, without any mala fides be raked up in disciplinary enquiries, it appears, also evoked no interest with the respondents. They have their own theory to say that indiscipline cannot be tolerated. There cannot be any two views that indiscipline particularly in the higher echelons cannot be tolerated, but what was the indiscipline indulged into by the applicant? Had he indulged in bribery, misappropriation, insubordination, or done something which was forbidden by law? His leave to go abroad had been sanctioned. He had made an application simultaneously requesting the respondents to issue him NOC to go abroad, wherein there was no order that be could not travel and there was no order refusing NOC. All that was mentioned is that he should obtain it, as if he had not made an endeavour to obtain the same. The only fault that can possibly be found with the applicant is that when he was appraised that he should obtain NOC, by making a note that the same may not be required, be went abroad. This, in our view, in the peculiar facts and circumstances of this case, and when the applicant, under instructions, as held by us, would not require the NOC, could at the most be small infraction of rules. We, however, would not delve on this issue any further and leave it at that, as in our view, the applicant would succeed hands down on the two-fold contentions raised by him, as noted and discussed above.
8. The second charge against the applicant is that by applying for casual leave for 9.4.2009, which was in combination of holidays/RH/EL, he remained absent from duty on 9.4.2009 without sanction. Admittedly, this part of the charge was added later. The applicant replied to the said charge by urging that he is a patient of hypertension and takes regular medication. He stated that he was not accustomed to long overseas travel, and that this was his first private overseas travel in his thirty years of service. He further stated that he had not been given the benefit of frequent official junkets abroad as most of his colleagues had availed, and that his experience of foreign travel was next to zero, and it was on the insistence of his son that he had to go to Australia. He then stated that medical treatment abroad is very expensive proposition, and that he needed a medical check-up before he could commence the travel, and therefore, he applied for one days casual leave on 9.4.2009, and that it is a matter of record that he did not head an independent office and was working in subordinate capacity in the very same building and in the very same office of the leave sanctioning authority. He further stated that it is an undisputed fact that casual leave application for one day was duly received in time by the CPMG on 9.4.2009, which was not refused by the leave sanctioning authority, and pay and allowances for that day had been drawn and paid to him under the authority of the leave sanctioning authority itself, and, therefore, it would be ridiculous to allege that he remained absent from duty. He also stated that he had been provided official e-mail identity and official mobile phone, and that no e-mail nor any SMS was sent to him by the respondents till his departure on 10.4.2009, or even thereafter. He further stated that while making the allegations as mentioned above, OM dated 7.10.1960 has been deliberately and completely ignored. The said OM specifically permits prefixing/ suffixing of casual leave with closed holidays/restricted holidays. The OM aforesaid appears as GOI decision number 2 below rule 22 of CCS (Leave) Rules. The applicant further stated that he had been granted restricted holidays for 13th and 14th April, 2009; 11th and 12th April, 2009 happened to be Saturday and Sunday; 10th April, 2009 was a gazetted holiday on account of Good Friday; suffixing and prefixing of casual leave with restricted holiday on account of Good Friday, and 11th and 12th April, 2004 were Saturday and Sunday, cannot be termed as prefixing, and even if it is to be treated as prefixing, then it is specifically allowed by the decision aforesaid, and that there is no bar anywhere in the rules or orders prohibiting undertaking of travel on days of casual leave/closed holiday/ restricted holiday/Saturday or Sunday. This explanation given by the applicant has been rejected by stating that combining the leave as mentioned above, would be in violation of rule 11 of the CCS (Leave) Rules. We are of the firm view that the respondents, on this count too, have faulted and rejected the explanation of the applicant on wholly untenable grounds. The plea raised by the applicant that he could be informed by e-mail or the mobile officially provided to him, and that he was not contacted on 9.4.2009 that he should not have made a note as made by him, or that he could not leave the country, has not been disputed. It is also not in dispute that the applicant has been given salary for 9.4.2009. We may repeat that this part of the charge came to be added later. Journey of the applicant abroad was to comment on 10.4.2009, and if he had applied for casual leave on 9.4.2009 for medical check-up as a prelude to his journey, the same should have not raised any eyebrows with the respondents. They would not inform the applicant on 9.4.2009 that he could not leave the country as NOC was not conveyed either telephonically or over e-mail. The charge seems to have been added as an afterthought to somehow fix the applicant. Appendix-III to FRSR Part-III of CCS (Leave) Rules states, Casual leave is not a recognized form of leave and is not subject to any rules made by the Government of India. An official on casual leave is not treated as absent from duty and his pay is not intermitted. Para 4 of the Appendix aforesaid provides, Sundays/public holidays/restricted holidays/weekly offs can be prefixed/suffixed to casual leave. The applicant had suffixed 9th April, 2009 with the days which were admittedly Saturday/Sunday or public holidays, and the casual leave as suffixed by the applicant under the rules, could not be treated as absence from duty. The respondents would not even deal with this aspect of the case, so specifically raised by the applicant. All that is said is that as a result of the applicant availing RH on 13.4.2009 and 14.4.2009, and all the other intervening dates between 9.4.2009 and 16.4.2009 being holidays, the casual leave requested by him on 9.4.2009 was in combination of the earned leave sanctioned from 16.4.2009, and hence in violation of rule 11 of the Leave Rules.
9. The applicant has made specific allegations of mala fides against Ms. R. Dorai Swamy, Secretary, Ministry of Communication & IT, the 4th respondent arrayed in the OA. It may be difficult, on the material available with us, to return a finding of mala fides against the said respondent, as surely the allegations of mala fides have to be proved on strict standard of proof, as in a criminal case, i.e., beyond shadow of reasonable doubt. Such is not evidence available on records. We are, however, of the considered view that the applicant has indeed been given a raw deal. It appears that for long time he is suffering on account of series of adverse orders. Earlier in point of time, despite the fact that the two FIRs registered against him were cancelled and the cancellation reports were accepted even by the concerned court, the case of the applicant was put in sealed cover, which would be totally against law. When the Tribunal issued notice noting this fact, the respondents would, even before the date fixed, open the sealed cover, but found him unfit for promotion. The applicant successfully challenged that order, even though we are told that in the writ petition filed against the orders passed by this Tribunal, the Honble High Court has modified the directions given by us, and the applicant has been rather asked to make representation against the ACRs which may be below benchmark. The representation of the applicant, we are told, has been rejected and the applicant has challenged such rejection by a separate OA. Third in series is the present chargesheet against the applicant, in which punishment has been imposed upon him. The respondents, counsel for the applicant would contend, would only seek advice of UPSC as regards quantum of punishment and not as regards merits of the controversy, with a motive that if advice of UPSC as asked for on merits of the case as well, the same might turn against them. We may only comment that in the present case the respondents have asked for advice of UPSC only as regards quantum of punishment. Despite some favourable observations already made by this Tribunal, the respondents have not taken those into consideration. The applicant would strongly plead for issuing suo moto contempt proceedings against the respondents, which we would not, however, do, but one thing is certain that the faith that the Tribunal reposed in the system, in the present case has been shaken.
10. For the reasons as mentioned above, the impugned order dated 26.11.2010 is quashed and set aside. The Original Application is allowed. We are of the firm view that the applicant has been meted out with rather harsh treatment by proceeding against him on wholly untenable grounds. In fact, if at all some body is to be blamed in this case, it was the officer who kept the matter as regards NOC to the applicant pending and despite the recommendation of the Directorate that no separate NOC was required, instead of granting the same, raised an objection that the applicant should have obtained it, just two days before the applicant was to travel abroad. The OA needs to be allowed with costs, which we quantity at Rupees twenty-five thousand, which, we are of the view, would be only conciliatory and not compensatory.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/