Central Administrative Tribunal - Delhi
Shri Moti Ram vs Union Of India Through on 15 April, 2011
Central Administrative Tribunal
Principal Bench
OA No. 2031/2009
MA No. 1357/2009
New Delhi, this the 15th day of April, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr.K.B. Suresh, Member (J)
Shri Moti Ram,
S/o Shri Balbir Singh,
Ex. Storekeeper,
R/o Village Nawada Fatehpur,
P.O. Nakhrala,
Distt. Gurgaon
(Haryana).
Applicant
(By Advocate : Mrs. Meenu Mainee)
Versus
1. Union of India Through
The Secretary to the Govt. of India,
Ministry of Defence,
North Block,
New Delhi.
2. Director General of Ordinance Services,
Master General of Ordinance Branch,
Integrated Hqrs of Ministry of Defence (Army),
New Delhi.
. Respondents.
(By Advocate : Shri A.K.Bhardwaj)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) The Applicant remained absent without prior permission/leave w.e.f. 09.09.2002 inspite of direction to join duty. He did not submit medical certificate from authorized Medical Attendant and did not join duty. However, he responded stating that he would not attend duty due to his sickness and would produce medical certificate at the time of joining duty. Finding his reply unjustified, he was issued a chargesheet dated 28.6.2003 (Annexure-A3) for major penalty on two counts viz (i) unauthorized absence and (ii) disobedience of orders. The Applicant denied the charges informing that he was sick and was under treatment. Vide order dated 22.09.2003 (Annexure A4), Shri J.S. Bakshi, OOC(S) was appointed as Inquiring Authority (IA). It is the case of the Applicant that he sent 5 telegrams to the concerned authority informing about his sickness which was corroborated in the enquiry by the Prosecution Witness (Maj. Suresh Kumar Yadav) vide his statement dated 25.3.2004 (Annexure-A5) and the said statement was also supported by the Defence Witness [Shri N.S. Bains] in his evidence before the IA (Annexure-A5A). After conclusion of enquiry the Presenting Officer submitted his brief on 24.1.2005 (Annexure-A6) and the Applicant submitted his defence statement on 29.1.2005 (Annexure-A7) . Besides, the Applicants statement was recorded by the IA during the enquiry on 10.1.2005 (Annexure-A8). The IA submitted his report dated 31.1.2005 (Annexure-A9). Finding the Report defective, Disciplinary Authority appointed Shri D.R. Sharma as IA. Later on as per Rule 15(1) CCS (CCA) Rules, the Enquiry Proceedings were remitted back to Shri Bakshi. On retirement of Shri Bakshi, Shri D.R. Sharma was again appointed as IA. It is the Applicants case that without giving any reasons and without communicating to the Applicant, the Respondents ordered denovo enquiry by appointing Shri D.R. Sharma as the IA. Respondents in their response have stated that it was not de novo enquiry but further enquiry. The IA Shri Bakshi forwarded his report to Disciplinary Authority (AOC Records). As the report was found defective, Respondents changed the IA and reasons were informed to the Applicant. As the 1st enquiry report was turned down by the Disciplinary Authority, it has been clarified by the Respondents that IA Shri Sharma conducted further enquiry from the stage defect crept in by the earlier IA Shri Bakshi and at every stage the Applicant was kept informed. He submitted the Inquiry Report on 24.12.2005 which was transmitted to the Applicant seeking his representation vide letter dated 12.06.2006 and he was reminded on 22.06.2006. He failed to submit his representation. It is stated that though the IA held the charges as partly proved but the Disciplinary Authority held the Applicant guilty of charges and issued a Show Cause Memorandum dated 12.06.2006 (Page-60) proposing the penalty of Removal from Service which would not be a disqualification for further employment under the Government. He did not submit his representation to the Disciplinary Authority who ultimately vide his order dated 8.8.2006 (Page-25) confirmed the proposed penalty. The Applicant in his appeal dated 25.09.2006 (Annexure-A11) raised 16 grounds before the Appellate Authority who in his order dated 10.09.2007 (Annexure-A2) rejected the appeal. Feeling aggrieved, the Applicant preferred a Revision Petition in March, 2009. As there was no decision of the Revision Authority he filed the present OA on 1.7.2009 praying the following relief(s) :-
8.1 That this Honble Tribunal may be graciously pleased to allow this Application and quash the impugned orders. 8.2 That this Honble Tribunal may be further pleased to direct the respondents to reinstate the applicant with all consequential benefits including back wages. 8.3 That the cost of these proceedings may kindly be granted in favour of Applicant and against the Respondents.
2. Mrs. Meenu Mainee, learned Counsel for the Applicant submitted that Inquiry Authority was changed twice without intimating the same to the Applicant. Disciplinary Authority having conducted de novo enquiry, the new Inquiry Authoritys report became the basis of penalty imposition. She contends that the entire inquiry has been vitiated by change of IA twice and the Disciplinary Authority having not considered the inquiry report of the IA (Shri Bakshi) and she pleads that on this ground punishment must be termed illegal. In support of the contentions, she relies on the judgments of (i) Honble Apex Court in the case of K. R. Dev Versus The Collector of Central Excise, Shillong [1971-2-SCC-102] and (ii) the Bangalore Bench of this Tribunal in the matters of Sri C. Bettappa Versus Union of India and Others [SLJ-2004 (3)-CAT-287].
3. It is contended that Applicant has been on leave due to his sickness for which he has intimated the competent authority number of times. Instead of sanctioning him medical leave, he was charge sheeted and removed from service. Mrs. Meenu Mainee would submit that the absence period on account of sickness should not be treated as willful absence and she placed her reliance on the judgments of Honble Supreme Court in the case of D. V. Kapoor Versus Union of India and Others [AIR 1990 SC 1923], judgment of Honble Jammu and Kashmir High Court in Mohd. Aslam Versus State [SLJ-2005 (3) J&K high Court 217], judgment of Honble Madhya Pradesh High Court in the matters of S. P. Tiwari Versus Union of India and Others [ATJ-2006 (3)-MP High Court-276]; and judgment of Honble Guwahati High Court in the case of Dulal Chandra Sarma Versus State of Mizoram and Others [ATJ 2003 (1) Guwahati HC 404].
4. She further submitted that the Applicant was issued an illegal Show Cause Notice mentioning therein the major penalty of removal from service was proposed to be inflicted on him due to his proved misconduct of unauthorized absence. She refers to the orders of this Tribunal in the matters of Shri S. P. Tiwari Versus Union of India and Others reported in ATJ 2004 (1) 409 [OA No.2901/2002 decided on 9.01.2004]; and Dharambir Singh Versus Union of India and Others [OA No.1662/2000 decided on 29.08.2001] reported in ATJ 2002 (1) 31 to state that the ratio laid therein stipulates that mention of proposed penalty in the Show Cause Notice is fatal and deserves to be quashed.
5. Besides the above major contentions, Mrs. Meenu Mainee submitted that (i) the evidence available in support of the Applicant had not been taken into account by the IA and the Disciplinary Authority; (ii) IA has not applied his mind while holding the charges as proved; and (iii) the principle of natural justice was violated as the IA did not examine the Applicant after the examination of witnesses and close of the enquiry. She, therefore, pleads that the OA should be allowed.
6. Controverting the grounds taken by the Applicant, the Respondents have submitted reply affidavit on 18.01.2010. Shri A. K. Bhardwaj, learned Senior Central Government Counsel representing both Respondents submitted that inspite of direction to the Applicant to join his duties, the Applicant did not report for duty, and even he did not receive the letters sent to him. Relying on the judgment of Honble Supreme Court in the case of State of Rajasthan and Another versus Mohd. Ayub Naaz [JT 2006-1-SCC-162] he submits that the absenteeism from office for prolonged period of time without prior permission of the competent authority by the Applicant has been indiscipline on his part. Shri Bhardwaj submits that the Applicant, on rejoining his duty after 313 days of unauthorized absence, submitted incomplete medical documents. On many occasions the Applicant did not receive the letter issued by the Inquiry Officer and letters were returned with the remark that the Applicant had gone to his office to do his duties. It was informed that even after joining on 16.12.2005 he did not sign S-37 and did not produce medical fitness certificate regarding his illness and again the Applicant absented from duty w.e.f. 20.12.2005. Shri Bhardwaj drew our attention to the fact that the Applicant was granted many opportunities by the IO but he did not sufficiently represent his case and so much, so he did not give his representation on the IOs report to the Disciplinary Authority.
7. The counsel for the Respondents placed his reliance on the judgment of Honble Apex Court in the case of Regional Manager, Bank of Baroda Versus Anita Nandrajog where the action of the Appellant in terminating the services of the Respondents on the ground of voluntary cessation of employment on grounds of absence for more than 150 days despite service of notice to resume work, was held as valid. Shri Bhardwaj contended that in the present case, the Applicant voluntarily abstained for which the penalty of removal from service should be upheld. This ratio, of the Honble Supreme Court is not applicable to the present OA, as the facts of Anita Nandrajogs case are different where voluntary cessation of work entailing termination of service was based on the clause 17(b) of the Agreement under Industrial Disputes Act.
8. It was contended that there was no de novo enquiry but there was further enquiry by the 2nd IO which was in continuation of the inquiry undertaken by the 1st IO. Shri Bhardwaj submits that under the Provision of Rule 15 (1) and (2) of CCS (CCA) Rules, the Disciplinary Authority has the power to remit back the case for furnisher enquiry, if he finds any procedural lapse. Nothing illegal has been done in ordering the further enquiry.
9. In support of his contentions, Shri Bhardwaj placed his reliance on the following judgments:-
* Laxmi Shankar Pandey versus Union of India and Others [1992 (2) V-AISLJ-14]. * Major G. S. Sodhi versus Union of India 1992 (2) SC 19.
* Union of India and Others versus Ram Phal JT 1996 (3) SC 276.
* Dr. B. P. Yadav and Anr. versus Dr. Ratneshwar Prasad Singh and Ors. 1996 (3) SC 283. * Rajudan versus State of Rajasthan and Ors. 660 ATJ 1999 (1).
* Union of India & Ors. versus Bishamber Das Dogra JT 2009 (9) SC 175.
* Chief of Army Staff and Others versus Major Dharam Pal Kukrety (1985) 2 SCC 412.
10. One of the grounds taken by the Applicant is that Respondents conducted a de novo enquiry without giving any reason through a different IA. During the hearing, the Counsel for the Respondents submitted a copy of the order dated 23.08.2004 which was sent to the Applicant intimating therein that there were defects in the inquiry proceedings. In Para 4 of the said order as many as 9 defects were pointed, and the Disciplinary Authority remitted back the case for further enquiry. This is not de novo enquiry. The further enquiry was ordered to rectify those defects pointed out in Para 4 (a) to (j) and to submit detailed assessment and findings. The Applicant was requested to cooperate in the said further enquiry. On a close perusal of the order, we find that the competent authority has passed the order for further inquiry and the defects in the inquiry proceedings were the reason for the same. The Applicant was informed of the same and a copy of the order was given to him. We, therefore, find that the grounds taken in this regard treating further enquiry as de novo enquiry are not acceptable.
11. With regard to the controversy of the Applicants unauthorized absence, it is noted that there are two components of the controversy viz. (i) wilfull and intentional absence and (ii) prior approval and authorization not available for the absence period. Though both components of the controversy are interlinked and intertwined, the chronology of events and reasons advanced by the Applicant for remaining absent being common for both, we would analyse these aspects here.
02.09.2011 The Applicant remained absent without leave 09.09.2002 up to the date when the Charge Memorandum was issued to him (28.03.2003). He absented up to 1.07.2003.
7.10.2002 In a letter he was warned to rejoin duty within one weak or latest by 16.10.2002 (Page 134).
25.10.2002 A letter was sent to him indicating that his wilfull absence from duty would attract disciplinary action and the same would be desertion from duty (Page 133).
12.11.2002 In a letter, the Applicant along with another employee were given a copy of the letter sent to OIC, AOC Records Secundarabad by Adm. Officer of the Central Aviation Support Deptt to initiate necessary departmental action as deemed fit (Page-132).
13.11.2002 The Applicant sent telegrams intimating his 20.11.2002 sickness.
05.03.2003 A letter was sent to the Applicant in response to the said telegrams by Adm. Officer to provide 4 types of information relating to his sickness and treatment in hospital.
06.05.2003 The Station House Officer of Gurgaon Police Station was requested to find out the whereabouts of the Applicant and his casual activities.
28.06.2003 A Charge Memorandum was issued against the Applicant on 2 counts; (i) unauthorized absence and (ii) disobedience of orders.
08.08.2003 Pursuant to the above Charge Memo, he was informed of the oral inquiry being conducted and request to engage Defence Assistant to defend his case.
28.08.2003. The Presenting Officer was appointed.
11.09.2003 Applicant was informed of the enquiry date (22.09.2003).
27.08.2004 The Disciplinary Authority pointed defects in the IAs report and directed to continue further inquiry.
10.01.2005 IA examined the Applicant.
24.01.2005 The Presenting Officer submitted his brief.
29.01.2005 The Applicant submitted his defence brief to the IA.
31.01.2005 The IA (Shri J. S. Bakshi) submitted his report holding the charges as proved.
27.07.2005 10.08.2005 18.11.2005 2.12.2005 He was sent letters to participate in the enquiry but he did not receive letters. Sarpanch of the Village was informed about Applicants absence.
31.10.2005 18.11.2005 24.11.2005 Registered letters sent to the Applicant returned back with the noting by the Postal Department that despite repeated visits at his home indl. not found and his family members said he is on Delhi duty. 8.12.2005 A Notice was published in the Newspaper.
10.12.2005 The Applicant was orally informed of the enquiry when he visited Depot at about 11.00 AM.
16.12.2005 He was informed of the ex-parte enquiry and the Applicant received the letter personally.
12.06.2006 Disciplinary Authority issued a Show Cause Notice holding both charges as proved and informed the Applicant as to why he should not be removed from service.
8.08.2006 Disciplinary Authority imposed the penalty of removal from service on the Applicant.
25.09.2006 Applicant submitted his appeal.
10.09.2007 Applicants appeal was rejected by the Appellate Authority.
12. The above chronology of events clearly bring out the Applicants wilfull absence and avoidance to receive letters from the Respondents. So much so initially during the enquiry Defence Assistant alone attended. His family members informed the Postal Departmental representative that the Applicant was on duty at Delhi. If the Applicant was sick and under treatment, how his family members were unaware of the illness? Question also arose what duty he was doing during his absence period. In support of his contentions, he submitted certain medical papers indicating that he was getting homeopathic treatment and some days treatment in Dr. R.M.L. Hospital, Delhi. Had he been seriously ill, his family members would have known the same. We find from the pleadings that there is no evidence that he was seriously bed ridden and ill by which he could not contact his office. Though his argument was that his information of illness given to the concerned officer, corroborated in the inquiry and the same had been considered but he was asked to produce genuine medical certificates and documents. He did not do so. Thus, we find that the IA and Disciplinary Authority have rightly held the Applicants absence as unauthorized and wilfull. Even the directions issued to rejoin did not yield any substantive response from the Applicant. As a result, the charge of disobedience of the orders of the concerned authorities was correctly held as proved.
13. Another ground taken by the Applicant was about the IA not asking the questions after the closure of inquiry. It is seen that the Applicant and Defence Assistant were asked to bring in their briefs. The Applicant was at liberty to raise the issue before the IA and also in his appeal and revision petitions. He cannot raise the same in the OA which he did not raise before the authorities concerned. AS this is a case of absence termed as unauthorized, the documentary evidence was more than adequate for the prosecution side. Thus, this technical contention does not come to Applicants rescue.
14. It was also contended that this was a case of no evidence and the evidence available in support of the Applicant was not taken into account by the IA. We find that the prosecution has produced number of documents in support of their evidence against the Applicant wherein the Applicant was requested to join back to produce appropriate medical certificates. Even while ordering further inquiry the Disciplinary Authority has identified as one of the points The oral inquiry proceedings submitted by IO is unilateral The further inquiry and the report furnished thereon rectified the defects. We note that the evidence in the disciplinary proceeding is not required to be in the nature as admissible in criminal cases. It is trite law that Preponderance of Probability is adequate for the IA and Disciplinary Authority to decide the case in departmental proceeding. Undisputedly, the Applicant was absent for long period and as analysed within the absence was properly treated as unauthorized. There is more than adequate evidence in the said charge of unauthorized absence. Besides on the 2nd charge of disobedience of orders there are documentary evidence to the effect that despite orders to rejoin his duty, he did not do so. This is clear case of disobedience. Hence, it is found that the contentions raised on the above grounds, do not stand to logic and rationality.
15. In a catena of judgments Honble Supreme Court held that the Government servant remaining unauthorizedly absent, is a grave misconduct and such employee must be visited with proportionate punishment. Our views are fortified with the judgment of Honourable Apex Court in Y.P. Sarabhai Versus Union Bank of India [2006 STPL(LE) 36841 SC]. Honourable Apex Court decided a case similar to the present case of long unauthorised absence of more than five months and the ground of ailment was taken as a ruse and since the principles of natural justice were followed the order of dismissal was held as proper. Further, Honourable Supreme Court considered a case similar to the present one in Maan Singh Vs. Union of India[2003-3-SCC-464] where the Appellant was charged for unauthorised absence from duty, and the domestic enquiry found him guilty of the misconduct. Hence, the appellant was dismissed from service. On appeal to Tribunal and High Court, dismissal from service was upheld. Thus, an appeal was preferred to the Supreme Court. Charge against the appellant in the case being unauthorized absence for long period on several occasions the Honourable Apex Court held the views of disciplinary authority justified and dismissed the appeal.
16. After a careful perusal of the papers placed before us by the parties, we find that the principles of natural justice have been complied with. Many times the Applicant himself did not appear before the IA and did not cooperate. He did not receive letters. He did not respond to the Show Cause Notice. Even after repeated letters sent to him which returned back to the Respondents, they had no other option but to publish in a News Paper about his absence and disciplinary action taken against him. The Respondents labouriously tried to reach the Applicant-more they tried less response came from the Applicant. Medical ground cannot be such that employer-employee relation is broken down by the employee. What best could be done, has been done by the Respondents. But it is the Applicant who is responsible for his misconduct. As stated above, the penalty of removal from service imposed on the Applicant, in our considered opinion, is proportionate to the proved misconduct.
17. Considering the full facts and circumstances of the case and in view of the above discussion on the issues, we come to the considered conclusion that the Applicant has not at all established his case and there is no ground warranting our interference in the matter.
18. Finding no merits in the Original Application, the same is dismissed leaving the parties to meet their own cost.
( Dr. K.B.Suresh ) ( Dr. Ramesh Chandra Panda )
Member (J) Member (A)
/rk/