Central Administrative Tribunal - Delhi
R.P.Kestwal vs Chief Secretary on 13 August, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
NEW DELHI
OA No. 951/2012
Order reserved on: 22nd July, 2013
Order pronounced on: 13th August, 2013
Honble Shri Sudhir Kumar, Member (A)
Honble Shri A.K.Bhardwaj, Member (J)
R.P.Kestwal
S/o N.D.Kestwal
R/o B-13/164,
Pharma Apartments,
I.P.Extension,
Delhi-110092.
Applicant
(By Advocate: Shri Ankur Arora)
Versus
1. Chief Secretary,
Govt. of NCT of Delhi
I.P.Estate,
New Delhi.
2. The Director
Directorate of Education
Old Secretariat,
New Delhi.
Respondents
(By Advocate: Ms. Harvinder Oberoi)
ORDER
By Honble Shri A.K.Bhardwaj, Member (J) The applicant while working in G.B.S.S., Rouse Avenue had gone on deputation to Botswana (South Africa) w.e.f. 29.2.2000 and his term was extended upto 31.3.2003. After expiry of his deputation he did not return to the parent organization and joined the Directorate of Education only on 19.2.2009 (FN), i.e., after a lapse of more than 5 years. Accordingly, the disciplinary authority issued the charge memo dated 3.10.2009, alleging that the act of the applicant in not returning to the parent organization on expiry of the maximum permitted period for absence on deputation amounted to an act unbecoming of a Government servant and was violative of sub-Rule (1) of Rule 3 of CCS (Conduct) Rules, 1964 and amounted to misconduct. In his reply dated 11.10.2009 the applicant denied the charges, thus a detailed enquiry was conducted. During the pendency of the enquiry the applicant superannuated on 31.10.2009 and the disciplinary proceedings were deemed continued under Rule 9 of CCS (Pension) Rules, 1972. The enquiry was concluded vide report dated 15.2.2010 and the allegation against the applicant was found proved. The copy of the enquiry report was made available to the applicant vide memo dated 15.7.2010 against which applicant submitted the representation dated 19.7.2010. The disciplinary authority submitted the Inquiry Officers report, representation of the applicant and all other relevant aspects of the case to the UPSC for its advice. Vide communication dated 25.11.2011, the Commission viewed that the charge against the applicant constituted grave misconduct, thus, the ends of justice would be met with imposition of penalty of 25% cut in pension of the applicant for a period of 5 years. For easy reference the relevant extract of advice of UPSC is extracted herein below:
4.3 The Commission further observe that the CO Shri R.P. Kestwal after sending his request for extension of his lien vide letter dated 15.2.2003 had never pursued the matter with the Govt. of NCT of Delhi, Directorate of Education. The CO had himself mentioned in his letter dated 15.02.2003 that he was entitled for five years lien as per Government of India rules. As such, he was well aware of the rules/ instructions of the Government in this regard, but he continued to work with Government of Botswana for eight years and when the Government of Botswana denied to accept his request for further renewal of his contract, he returned to join the parent department. Thus, it is clear that the CO Shri R.P. Kestwal joined his duties after a lapse of more than five years from the date of expiry of his deputation period on 31.03.2013. The CO had not obtained NOC/extension from department but still went ahead with renewal of contract. The CO should have renewed fresh contract only after getting the proper approval. The CO vide his letter dated 12.12.2008 had submitted his request to join the parent department and after consideration he was allowed to join the department on 19.02.2009.
4.4
5. In the light of their observations and findings as discussed above and after taking into account all other aspects relevant to the case, the Commission note that the charges established against the CO, constitute grave misconduct on his part and consider that the ends of justice would be met in this case if the penalty of withholding of 25% (Twenty Five percent) of the monthly pension otherwise admissible to Shri R.P.Kestwal is imposed on him for a period of five years and further the gratuity admissible to him should be released, if not required in any other case. They advise accordingly.
2. Accepting the advice of the UPSC the disciplinary authority passed order dated 16.12.2011 withholding 25% of monthly pension otherwise admissible to applicant. In para 5 of the penalty order it is specifically viewed that the charge established against the applicant constitutes a grave misconduct. For easy reference the said para 5 of the penalty order is extracted herein below:
The President has carefully considered the records of the proceedings, the report of the Inquiring Authority the representation made by Shri R.P. Kestwal on the report of the Inquiry Officer and the advice of the Union Public Service Commission referred to above. The President agrees with the advice of the Union Public Service Commission note that the charges established against the C.O. constitute a grave misconduct on his part and consider that the ends of justice would be met in this case if the penalty of withholding of 25% (twenty five percent) of the monthly pension otherwise admissible to Shri R.P. Kestwal is imposed on him. The President orders accordingly.
3. In the present OA filed by the applicant assailing the order of punishment it is contended that since the UPSC had advised for imposition of penalty of cut in pension of the applicant for a period of 5 years, the disciplinary authority ought to have given due weightage to it. In para 2 of the penalty order the name of the applicant has been wrongly mentioned as R.P. Tyagi while his name is R.P.Kestwal. The enquiry authority failed to consider the defence of the applicant.
4. It is also the plea raised by the applicant that the controversy involved in the present OA is squarely covered by the judgments in T.B.Tyagi vs. Govt. of NCT of Delhi and N.K.Aggarwal vs. Govt. of NCT of Delhi. When the two judgments are referred to in the grounds taken in the OA, no particulars of the report or citation thereof is indicated. According to applicant the misconduct alleged against him is not grave and does not call for imposition of penalty or withholding or reduction of pension; charges are not established by the disciplinary authority; the documents were not supplied to him.
5. In the counter reply filed on behalf of the respondents it is explained that at the end of deputation period of the applicant, i.e. 1.3.2003 no order was passed by the respondents extending the period of deputation, thus, the applicant ought to have returned to parent organisation. According to respondents the advice of the UPSC has been accepted by the disciplinary authority and the penalty is imposed accordingly.
6. In rejoinder learned counsel for applicant has placed reliance on the judgment of Delhi High Court in Secretary, Ministry of Health and Family Welfare and others vs. Dal Chand and the order of this Tribunal in N.K.Aggarwal vs. Government of NCT of Delhi, (1989) 9 ATC 816(bid).
7. We have heard the learned counsel for the parties and perused the record. To our dismay when in the OA filed by the applicant the ground 5 (ii) has been taken without application of mind, in para 5 of the order of the disciplinary authority when it agreed with the advice of UPSC it did not impose the same penalty as advised by it. For easy reference the ground 5 (ii) taken in the OA which has no bearing on any of the issues is extracted herein below:
(ii) Because to keep the applicant on adhoc basis for such a long time and any further is illegal, arbitrary and discriminatory being violative of Articles 14, 16 and 39(d) of the Constitution of India.
8. Nevertheless, this Tribunal being the court of first instance, we deem it proper to adjudicate all the grounds taken by the applicant. As far as the plea of the applicant regarding non-consideration of his request is concerned, we find that the only defence the applicant espoused in the present OA is that he had made a representation for extension of his deputation for another term from 1.4.2003/14.1.2003. Mere submission of representation or request made by the applicant for extension of deputation would not justify the overstay. In the absence of any positive response from the authority competent to do so, the applicant could not have presumed that his request for extension of deputation was accepted. If we counterance the plea that the mere request for extension of deputation tenure sent to the parent organization would amount to justification of continuance of an employee in a foreign country on deputation basis, the legal position regarding permission or consent of the parent organization for such purpose would turn redundant which would result in increase in indiscipline in the Government organizations. Nevertheless, in N.K. Aggarwals case (supra), the Full Bench of this Tribunal ruled that mere failure to report for duty in the circumstances could not by itself amount to misconduct as there could be justifiable grounds for absence. In the said case the applicant a post-graduate teacher under the Delhi Administration was sponsored by the Department of Personnel and Administrative Reforms, Government of India for foreign assignment. He was selected by the Government of Nigeria as a Senior Master, Grade I, for teaching General Science for a period of three years. He joined the foreign assignment in Kano in 1977. The deputation was upto 6.9.1980. Before expiry of the period of the contract, the Principal of Government Arabic Teachers College, Kano where the applicant, N.K.Aggarwal was posted, wrote to the Indian High Commissioner, vide his letter dated 12.1.1980 stating that the services of the applicant were very much needed with the Ministry of Education, Kano State to teach General Science and requested that permission might be granted for the extension of his contract with the Ministry of Education Kano State for 2 years. Sh. Aggarwal requested for endorsing a copy of their request to the Secretary, Education Department, Delhi Administration, Delhi. The Principal also forwarded a certificate dated 22.2.1980 appreciating the services of Sh. N.K.Aggarwal who wrote to the Indian High Commissioner on 30.9.1981 that even after a lapse of more than a year, he did not get any reply in the matter of extension of his deputation and requested for taking up the matter for urgent action in this regard. The Ministry of Education, Kano State had applied to Delhi Administration sufficiently in advance for extension of his deputation and for his retention in Nigeria. In the said case, when the applicant was issued memorandum dated 6.12.1982 by the Office of Dy. Director of Education, he tendered his resignation to the Government of Nigeria which was accepted on 3.5.1983. The Principal, Government Secondary School, Kano State, Nigeria vide his letter dated 3.5.1983 addressed to Dy. Director of Education, New Delhi informed that the applicant had resigned from his post in Nigeria to join his parent department, Directorate of Education, Delhi Administration, Delhi but he would be relieved from the school at the end of the academic session in September 1983. It was in these circumstances, the Tribunal was of the view that N.K.Aggarwal had not committed any misconduct.
9. In the present case, it is not so that the College of Education, Botsvana, South Africa requested the Directorate of Education, GNCTD to extend the deputation of the applicant. Besides in the present case the contract of the applicant was for a period of 3 years, i.e., till 14.1.2003 and in his representation dated 15.2.2003 (Annexure A-6) he had sought extension only till 31.3.2005. Even in subsequent representation dated 10.3.2003 also he requested for extension of deputation for another term i.e., from 14.1.2003 upto 14.1.2006. However, the applicant did not join the service till forenoon of 19.2.2009. Even if he could presume that the period of his deputation was extended till 13/14.1.2006, there is no justification for his absence for another long period of almost 3 years. In State of Rajasthan and another vs. Mohd. Ayub Naz, AISLJ Vol. 2 2006 179, Honble Supreme Court viewed that unauthorized absence is a root cause for indiscipline in Government service and should not be ignored lightly. The relevant excerpt of said judgment reads as under:
7. We have carefully gone through the pleadings, annexures filed along with this appeal and the judgments passed by the High Court.
Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Raj as than inserted Rule 86 (3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service.
xxx xxx xxx
16. For the foregoing reasons, we are of the opinion that a government servant who has wilfully been absent for a period of about 3 years and which fact is not disputed even by the learned Single Judge of the High Court, has no right to receive the monetary/retiral benefits during the period in question. The High Court has given all retiral benefits which shall mean that lump sum money of lakhs of rupees shall have to be given to the respondent. In our opinion, considering the totality of the circumstances, and the admission made by the respondent himself that he was wilfully absent for 3 years, the punishment of removal imposed on him is absolutely correct and not disproportionate as alleged by the respondent. The orders passed by the learned Single Judge in SB Civil Writ Petition No. 2239 of 1991 dated 24-8-2001 and of the order passed by the Division Bench in LPA No. 1073 of 2001 dated 13-12-2001 are set aside and the punishment imposed by the disciplinary authority is restored. However, there shall be no order as to costs. The appeal stands allowed.
10. Thus, we are unable to take a view that in not joining back on expiry of period of deputation for a long period of 6 years, the applicant did not commit any misconduct. In N.K.Aggarwals case the Full Bench had taken the view regarding misconduct of the applicant in view of the facts therein. In para 5 of the judgment, it is categorically stated that in the circumstances of the case, the applicants absence from India and his continuing in service with the friendly Government of Nigeria on deputation cannot be treated as willful absence from duty. Para 5 of the judgment reads as under:
5. In fact, there is no finding either in the enquiry report or in the order of the disciplinary authority that the applicant willfully absented himself which is the gravamen of the charge served on the applicant under memorandum dated 25.03.1985. Mere failure to report for duty in the circumstances could not by itself amount to misconduct for there could be justifiable grounds for absence. In the circumstances the applicants absence from India and his continuing in service with the friendly Government of Nigeria on deputation cannot be treated as willful absence from duty. The period of his absence from India while he was serving the Nigerian Government and the request of that Government for extension of his deputation which was also recommended by the Indian High Commission itself remained undisposed of and which was also forwarded by the Delhi Administration itself could not be termed as wilful and unauthorized absence. In any event, it did not justify framing of any charge against the applicant for overstay by the Delhi Administration which had recommended the extension of deputation; much less did it justify the imposition of extreme penalty of removal from service. It will not be out of place to mention - although that may not be a ground for quashing the impugned order - two other persons S/Shri Surinder Singh and V.M. Anand who were approved for deputation in a foreign country along with the applicant by the Education Department of Delhi Administration and returned to India after spending 7 years and 11 months and 6 years and 1 month respectively, were allowed to join duty subject to the disciplinary action, if any, the respondents may deem fit to take. Though the applicant returned after serving for 5 years and 11 months and was entertained without any such warning while no action whatsoever was taken against the other two, the applicant is visited with the extreme penalty of removal from service. In our view, in the circumstance of the case, neither framing of the charge was justified nor the imposition of any penalty, much less the penalty of removal from service.
11. Circumstances of the present case are distinguishable from those in the case of N.K.Aggarwals case wherein after issuance of memo Sh. N.K.Aggarwal returned to parent organization even before expiry of the extended contract with the borrowing organization. Remaining absent and not returning to parent organization even after expiry of deputation for a long period of about 6 years cannot be ignored lightly. Besides both in the advice of UPSC and disciplinary authority, the misconduct of the applicant has been treated as grave one. As has been noticed herein above, it is not the case of the applicant that he returned to parent organisation on expiry of the deputation period. His only explanation is that he made representation for extension of deputation. Thus we find no force in the contention of the applicant that charges are not substantiated. Such plea has been taken by the applicant himself in paras 5 (6) and 10 of the OA.
12. In Union of India and Ors Vs. S.K.Kapoor, (2011) 4 SCC 589 it has been viewed by Honble Supreme Court that non-supply of the advice of UPSC to delinquent or charged officer would not vitiate the enquiry proceedings. The relevant excerpt of the judgment reads as under:
7. In the aforesaid decision, it has been observed in SCC para 25 that 'the provisions of Article 320(3)(c) of the Constitution of India are not mandatory. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable.
8. There may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the employee concerned. However, if it is relied upon, then a copy of the same must be supplied in advance to the employee concerned, otherwise, there will be violation of the principles of natural justice. This is also the view taken by this Court in S.N.Narula vs. Union of India.
9. It may be noted that the decision in S.N.Narula case was prior to the decision in T.V.Patel case. It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula case was not noticed in T.V.Patel case, the latter decision is a judgment per incuriam. The decision in S.N.Narula case was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court.
13. Thus, we do not find any force in the ground taken by the applicant in ground 5 (viii) of the OA, though the advice of UPSC is not binding on DA. Nevertheless, once the UPSC advised for penalty of 25% cut in pension for a period of 5 years, having agreed with such advice, the disciplinary authority should have imposed the same penalty. In para 5 of the order the disciplinary authority has not specified any period during which the applicant would receive reduced pension. Even in the counter reply filed by the respondents it is categorically stated that the UPSCs advice has been accepted by the disciplinary authority. For easy reference para 4 (xiii) of the reply is extracted herein below:-
The content of this Para are denied. The enquiry was conducted as per rule. It is submitted that the Enquiry Officer has proved the charges against the applicant. The UPSC advice has been accepted by the Disciplinary Authority and the punishments order had been passed. All the principles of natural justice have been met and full opportunity was given to the applicant to defend himself. Therefore order of the Disciplinary Authority is correct and cannot be faulted with.
14. As far as the plea of typographical error in the name of the applicant in para 2 of the punishment order is concerned, the same is of no consequence. Nevertheless, once the disciplinary authority agreed with the advice of the UPSC, the order of penalty should have been in consonance with such advice. In the circumstances, we quash the impugned order of penalty only on the limited ground. It would be open to the disciplinary authority to pass a fresh order with due application of mind. The release of withheld amount of pension would be abide by the fresh order to be passed within 3 months from the date of receipt of a copy of this order.
( A.K.Bhardwaj ) ( Sudhir Kumar)
Member (J) Member (A)
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