Central Administrative Tribunal - Delhi
Mrs. Yogita Swaroop vs Union Of India Through on 15 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.143/2013 Reserved On:01.12.2014 Pronounced On:15.12.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Mrs. Yogita Swaroop W/o Anand Swaroop R/o B-186, Sector-26, Noida (UP). Applicant By Advocate: Shri S.K. Dubey and Shri Rajmangal Kumar. Versus 1. Union of India through Secretary, Ministry of Finance, South Block, New Delhi. 2. The Secretary, Union Public Service Commission, Shahjahan Road, New Delhi-110001. .Respondents By Advocate: Shri R.V. Sinha. ORDER
G. George Paracken, Member(J) This is the third round of litigation by the Applicant against the order of the Disciplinary Authority dismissing her from service. In the first round of litigation, finding that the penalty of dismissal imposed upon her was without considering some of the material facts, this Tribunal directed the Disciplinary Authority to review its order under Rule 29-A of the CCS (CCA) Rules, 1965. After review, the Disciplinary Authority again imposed the same penalty of dismissal from service upon her. However, this Tribunal again came to the conclusion that the Disciplinary Authority has passed the aforesaid order in violation of the principles of natural justice inasmuch as that the Disciplinary Authority did not supply the copy of the advice of the UPSC before the impugned order of dismissal was imposed upon her. Accordingly, the Respondents were directed to reinstate her in service but with the liberty to proceed with the disciplinary case from where the illegality has crept in. But again, vide order dated 02.07.2012, she was dismissed from service. Hence, this OA.
2. Brief facts: Applicant is an Indian Economic Service (IES for short) Officer. She was on deputation to the State Planning Institute, Yojna Bhawan, Lucknow, up to 09.06.2002. During her period of deputation, she made an application for leave on 11.06.2001 informing the Special Secretary (Planning) that she had to proceed to Delhi and then to Bombay for post operative checks and other investigations. She had also informed him that she was not in a position to attend office from that date and will apply for leave in the prescribed format when she resumes her duty. However, she did not report for duty thereafter. Therefore, he cadre controlling authority, namely, Ministry of Finance, Department of Economic Affairs (the First Respondent), proceeded against her under Rule 14 of the CCS (CCA) Rues, 1965 for unauthorized/willful absence from duty, vide Memorandum dated 13.09.2004. The substance of imputation of misconduct or misbehaviour in respect of which the enquiry was proposed to be held as set out in the Statement of Articles of Charges reads as under:-
Article-I That the said Smt. Yogita Swaroop while being posted as Deputy Director (Planning Division), Government of Uttar Pradesh on deputation basis had proceeded on leave on 11.06.2001 informing Special Secretary (Planning), Yojna Bhawan that she has to proceed to Delhi and Bombay for post operative and other investigations. That Smt. Yogita Swaroop has not reported for duty since 11.06.2001.
Article-II Smt. Swaroop was issued OM No.13032/17/92-IES dated 16.09.2003 requesting her to report to the IES cadre, Department of Economic Affairs latest by 15.10.2003 and vide letter 13032/17/92-IES dated 03.12.2003 requesting her to report to the IES cadre, Department of Economic Affairs latest by 31.12.2003 failing which disciplinary action would be initiated against her for unauthorized absence from duty. Smt. Yogita Swaroop did not respond to these letters, nor did she report for duty, and is continuously on authorized absence since 11.06.2001. These acts of Smt. Yogita Swaroop tantamount to indiscipline on her part and warrants disciplinary action for violating Rule 3(i)(ii) and (iii) of the CCS (Conduct) Rules of 1964.
According to the statement of imputation of misconduct annexed with the said Memorandum, the Applicant while posted as Deputy Director in the National Building Organization, Ministry of Urban Affairs and Employment was sent on deputation, on her request, as Deputy Director (Planning Division) for a period of one year from 29.4.1998 and she joined them on 09.06.1998. The said period was extended up to 09.06.2002 but on 11.06.2001 she applied for leave informing Special Secretary (Planning) that she was proceeding to Delhi and Bombay for post operative checks and other investigations. Thereafter, no communication was received from her and she has not been reporting for duty since then. On account of her continuous absence without authorization, she was requested to report for duty by 15.10.2003 and again by 31.12.2003. She was also informed that failure to report for duty will result in disciplinary action against her. However, she did not respond to those letters and continued to remain on unauthorized absence.
3. As per the list of documents annexed with the aforesaid Memorandum dated 13.09.2004, there was a letter dated 05.01.2003from Shri Arvind Narayan Mishra, Special Secretary to the Government of Uttar Pradesh to Ms. Mala Dutt, Director, Department of Economic Affairs stating that the Applicant, after joining the State Planning Department on 04.06.2001, gave a leave application on 11.06.2001 stating that she was going to Delhi and Bombay. Thereafter, neither any letter was received from her nor there was any information about her. They have, therefore, forwarded her leave application to the First Respondent to look into the matter. On receipt of the aforesaid Memorandum dated 13.09.2004, the Applicant, vide letter dated 28.09.2004, requested the Disciplinary Authority to grant her more time to give reply stating that at that time she was stationed at New Delhi/Etah and she had to go to Lucknow to collect the necessary documents. The said letter was also listed as a prosecution document.
4. Thereafter, vide her letter dated 13.11.2004, she refuted the charges levelled against her and stated that she had applied for leave after duly informing the Special Secretary Planning, Yojna Bhawan, Lucknow as she was to proceed to Delhi and Bombay for post operative checks and other investigations. As regard the first Article of Charge that she did not report for duty from 11.06.2001, she submitted that she was on extraordinary leave from that date on medial grounds. She has also stated that after she was diagnosed with uterine and abdominal tuberculosis in January, 2002 she has been undergoing treatment for them. Later on, various other gynecological problems were also diagnosed for which she was undergoing treatment for a period close to one and a half years from Dr. Aniruddh Malpani and Dr. Kulsheshtra. During the said period, investigations, supporting examinations, laproscopy, hysteroscopy etc. were performed on her. Subsequently, her case was transferred to Dr. Mangala Telang at Telang Clinic, New Delhi under whose treatment she was thereafter. She has also stated that she was under intense mental stress, due to the intermittent surgeries and was advised rest. Further, she has stated that the fact that she was undergoing treatment was intimated to the then Special Secretary, Sri Anoop Aggrawal in 2001 and again in 2002 and her leave application on medical grounds as recommended by the Chief Medical Officer (CMO for short) dated 02.11.2004 has also been received by Sri Amal Kumar Verma, Principal Secretary, Government of U.P. According to the aforesaid letter dated 02.11.2004, Sri Amal Kumar Verma informed Shri S.K. Tewari, Deputy Economic Advisor, Ministry of Finance, Government of India that the Applicant in her letter dated 05.10.2004 informed that she was willing to work in Planning Department, Government of U.P. on deputation basis. Therefore, it was recommended that her deputation period should be extended till December, 2005. Shri Amal Kumar Verma has also informed Shri S.K. Tewari that the Applicant got unhealthy from 11.06.2001 and she should be granted extraordinary leave. Accordingly, her request was placed before the Government of India to consider her case for extension of the deputation period and thereafter to take the decision on her request for medical leave can also be considered.
5. As regards the second charge is concerned, the Applicant submitted that the OM dated 15.10.2003 and the subsequent OM dated 13.12.2003 stated to have been issued to her were not received by her. The only communication received her in that regard was from Mr. Angami (IES) who informed her telephonically that no communication was being received by the cadre either from the State Government or by the officer regarding extension of deputation period. She has, therefore, stated that she was on leave at that time and informed him that communication will be sent at the earliest. She has also stated that the first communication received by her thereafter in that regard was the OM dated 03.12.2003 by Sri Munshi Ram and immediately thereafter, she telephonically informed the position to him. Thereafter, another letter dated 26.12.2003 was also received from Shri Munshi Ram. She has, therefore, requested to appreciate that the above charges as purported to have been communicated to her have not been received by her and at the earliest when it was brought to her, she responded to it. As such, she has not contravened in any way the provision of the service rules. She has, therefore, requested the Disciplinary Authority to drop the charges as framed against her and to continuously treat her on deputation till the period of treatment and extraordinary leave (medical leave) is decided on sympathetic grounds.
6. But as proposed in the OM dated 13.09.2004, the disciplinary proceedings were initiated against her but as stated therein, no list of witnesses were provided to sustain the Articles of Charges levelled against her. According to the Enquiry Officer also, the Presenting Officer did not produce any witnesses or any new material on record. As regards the enquiry proceedings were concerned, she stated that the preliminary hearing of the charges held on 28.3.2005 she presented herself to the Investigating Officer Shri Nagaraju who fixed the next date of enquiry on 19.05.2005 which was later postponed to 29.07.2005 as Mr. Nagaraju had left for America for official purpose. Subsequently, vide letter No.1796/DS(PMU)/105, dated 30th August, 2005 it was conveyed to her that the hearing date was rescheduled for 08.09.2005. Since she was in the middle of her treatment due for surgery on 08.09.2005, she requested the IO vide her letter dated 06.09.2005 to reschedule the meeting date. Disregarding her request, an order was issued on 08.09.2005, the very date of her surgery, threatening her to hold proceedings ex-pare if she did not attend the next hearing. However, the next hearing was scheduled on 28.10.2005 and she presented herself to the IO although in an advanced stage of pregnancy and with a high risk as she was carrying quintriplets and despite having been asked by her doctor to take complete bed rest. Her husband accompanied her. Thus in spite of putting herself and the unborn children to great risk, she attended all the hearing and presented herself as and when required.
7. During the pendency of the enquiry proceedings, she joined back the IES Cadre on 29.11.2005 after submitting the joining report to Mrs. Mala Dutt, Director. However, since she was in advanced stage of pregnancy, she applied for maternity leave on 12.12.2005 in the prescribed format. But the Department did not accept her request for grant of maternity leave and placed her under suspension vide order dated 18.01.2006. She made appeal on 06.02.2006 against the aforesaid order of suspension and requested the Respondents to revoke it but it was rejected, vide order dated 12.06.2006. She made another appeal dated 26.6.2006 to Ist Respondent against the aforesaid order dated 12.06.2006 wherein she has stated that the allegations made against her were factually incorrect and she had personally presented herself before Mrs. Mala Dutt, Director, IES cadre and explained the fact that since she was undergoing medical treatment, she was not in a position to join official duties by 31.12.2003 as warranted vide the OM dated 03.12.2003 and she had already informed Shri Munshi Ram accordingly vide her letter dated 26.12.2003. She has also informed that Mrs. Dutt asked her to get her leave regularized and to get a letter for extension of deputation sent from U.P. Govt. But under no circumstances, Mrs. Dutt insisted her to join, despite her ill health. She has also explained that the delay in getting her leave sanctioned at Lucknow was because her surgeries were scheduled for 12.01.2004. She has, therefore, vide her letter dated 28.09.2004, sought some more time to reply to the charges framed against her and the cadre extended time till 29.10.2004. However, since there was delay in processing her leave application, she sought extension of time vide her letter dated 20.10.2004 addressed to Mr. D.C. Gupta, Secretary (Finance) with copy to Mrs. Mala Dutt, Director. Thereafter, she submitted her defence statement on 13.11.2004. Meanwhile, her leave application in prescribed format, forwarded by the Chief Medical Officer, was made available to Secretary (Planning) at Lucknow on 30.10.2004. In response to the said letter, the Planning Department wrote to IES cadre in November, 2004 seeking certain clarifications and also informing them that her leave application was being processed. However, the Cadre did not reply to the said letter and did not give any clarification as sought by UP Government. Instead, enquiry was ordered vide letter No.13032/17/92-IES dated on 22.02.2005 without taking her defence statement.
8. Thereafter, the Enquiry Officer submitted his report on 30.01.2006 holding that she did not report to the cadre in spite of her being informed and thus the first Article of Charge was proved. As regards the second charge is concerned, he held that the Applicant did not report to the cadre but she was under confusion about the status of her service and she was in touch with the cadre as well as Planning Department, Uttar Pradesh. At the same time he held that the second Article of Charge was also proved. The Enquiry Officer has also stated in his report that the Applicant has been under treatment for fertility, associated tests/investigations and conception, since 2001 and the medical documents indicate that she was under treatment at various places under several doctors, as there was high probability of naturality to quench her thirst for motherhood. The Enquiry Officer continued to say that it was perhaps due to her anxiety that she could not forthrightly inform her medical condition to the authorities fearing social reactions. He has also brought to the notice of the Disciplinary Authority that she was at an advanced stage of pregnancy with twins and suggested to factor in all those aspects while deciding the quantum of punishment. The relevant part of the said report is reproduced as under:-
6. Smt. Yogita Swaroop the accused officer had submitted a letter dated 11.06.2001 addressed to Special Secretary (Planning) Government of Uttar Pradesh stating that she was proceeding to Delhi and Bombay for post operative checks and other investigations and she will apply for leave in the prescribed format after resumption of the duties. The letter was received in the office of planning department on 12.07.2001. In her written statement, she herself had stated that she was on leave. Since she herself had admitted that she was on leave this admitted fact need not be proved. Therefore, I have to accept that the C.O. was on leave since 11.06.2001. There is no evidence to suggest that the officer was granted any leave either by the borrowing organization or the IES cadre. The A.O. also could not produce any document to prove that she was granted leave. Therefore, I decide that the C.O. went on leave from 11.6.01 and that her absence was unauthorized since no competent authority had sanctioned her leave.
7. The next question to be considered is has she been duly informed to report to the cadre? The cadre controlling authority had issued two letters dated OM No.-13032/17/92-IES dated 16.9.2003 and No.-13032/17/92-IES dated 3.12.2003 to Smt. Yogita Swaroop to report to the cadre, Department of Economic Affairs. This is precisely after two years three months of her absence. Smt. Swaroop has denied that she ever received the letter OM No.-13032/17/92-IES dated 16.9.2003 and presenting officer could not produce any evidence also to prove that she had received this letter. The second letter No.13032/17/92-IES dated 3.12.2003 from Under Secretary Department of Economic affairs was received by Smt. Yogita Swaroop as evident from her written statement dated 29.11.2005 marked as DE V. In fact in response to this letter she had written a letter to IES cadre. Therefore, I accept that she was duly informed and directed to report to the Cadre. It may be pointed out here that the extended deputation tenure of the officer had expired on 8.6.2002 and it was not extended further. I also decide the third question in affirmative.
8. The next question to follow is did she report to the cadre after she was duly informed? The fact that she had produced medical documents to prove that she was under treatment with various doctors for various problems indicate that she did not report to the cadre. She also produced a copy of the leave application on medical grounds addressed to the Principal Secretary to the Planning department dated 2.11.2004 which indicates that she did not join her duties either at Lucknow or at cadre controlling authority. Smt. Swaroop also never stated in her written or oral deposition that she reported to the cadre. Smt. Swaroop however, had taken up with cadre authority as well as Planning department for sanction of leave and extension of her deputation. While the borrowing department had taken up with cadre for extension, but there are no records to know what action DEA had taken on her request for sanction of leave and extension of deputation. However, the fact that DEA has not extended her deputation tenure and not granted any leave is very loud and clear. The final conclusion is that she has not reported to the cadre inspite of being duly informed. Therefore, it have no hesitation to accept the charge framed under article I is proved.
9. Charge under Article II is same except that she has not responded to the letters issued to her by the DEA and not reported to the cadre. Therefore, I will be examining the limited question of whether she was duly informed and whether she has not responded to them. I would not like to consider questions that were already considered and answered at Article I.
10. The following questions were framed for consideration of charge under Article-II.
a. Did the accused officer receive the two letters- OM No.-13032/17/92-IES dated 16.9.2003 and No.-13032/17/92-IES dated 3.12.2003?
b. If so, has she responded to those letters?
11. Whole no evidence was placed by the presenting officer to show that the letter dated OM No.-13032/17/92-IES dated 16.9.2003 was received by the accused officer but the letter No.-13032/17/92-IES dated 3.12.2003 was received by the accused officer as per the written statement submitted by her to the I.O. and admitted by her in her letter to IES division and planning department, Uttar Pradesh. I decide that the accused officer was duly informed to report to the cadre vide letter No.13032/17/92-IES dated 3.12.2003.
12. The second issue to be decided is did the accused officer report to the cadre? Is there any response from her? While it is an accepted fact that she has not reported to the cadre but she did write to Uttar Pradesh government on 30.10.2004 for leave and IES division on 26.12.2004 informing her medical condition and stating that she was under extra ordinary medical leave. However, she has not bothered to find out whether any admissible leave was sanctioned to her or not. DEA should have out rightly rejected her letters and asked her to report to the cadre. I think she was also under confusion about the status of her service reported to the cadre. I think she was also under confusion about the status of her service and she was in touch with the cadre as well as Planning department, Uttar Pradesh. I, therefore, decide that the charge framed against her under Article II is also proved.
13. I would like to place before the Disciplinary Authority some additional facts for consideration. From the documents the charged officer had submitted (DE V to DE VIII) it is evident that for a long time, to be precise since 2001, the accused officer has been under treatment for fertility, associated tests/investigations and conception. The medical documents indicate that she was under treatment at various places under several doctors. This has high probability of naturality to quench her thirst for motherhood. We may also keep in mind the attitude of Indian society towards a woman who is not blessed with offspring and the reaction one would receive from colleagues and known persons if they come to know of ones attempts to conceive with help from fertility clinics. Perhaps due to her anxiety the officer was unable to forthrightly inform her medical condition to the authorities fearful of social reactions. At present she is at an advanced stage of pregnancy with twins. I feel, therefore, the Disciplinary Authority may factor in this aspect while deciding the quantum of punishment.
9. The Respondents delivered a copy of the aforesaid report to the Applicant vide Memorandum dated 07.03.2006 to enable her to make her representation, if so desired but she did not do so. Thereafter, her case was referred to the UPSC, vide their letter dated 07.06.2006, with all relevant records of the case. The UPSC, vide their letter dated 28.03.2007, advised the Disciplinary Authority that ends of justice would be met in her case if penalty of dismissal is imposed upon her. Accordingly, the Disciplinary Authority, vide its order dated 10.04.2007 imposed the same penalty upon her and along with the same, a copy of the advice of the UPSC was also supplied to her.
10. Applicant challenged the aforesaid order before this Tribunal vide OA No.579/2008 and this Tribunal, vide order dated 23.01.2009 disposed of it with a direction to the Respondents to review its order dated 10.04.2007 under Rule 29-A of the CCS (CCA) Rules, 1965. The relevant part of the said order reads as under:-
6. It is observed that the order imposing the penalty has been passed as a Presidential order under Rule 14 of CCS (CCA) Rules. This is the final order and is based on the advice of the UPSC without mentioning any specific reasons separately. Among several contentions raised on behalf of the applicant, learned counsel Shri A.K. Behera would draw our attention to non-consideration of some relevant facts by the UPSC while formulating their views in the matter. In this context, he would point out that while the enquiry report makes a specific mention about the prolonged treatment of the applicant since 2001 for infertility, there is no reference to this important fact in the UPSCs advice to the Ministry. The learned counsel would also aver that the mention in the Presidential order regarding the charged official not submitting any representation in response to the enquiry report is also not based on facts as she had, in fact, submitted an application is also an erroneous assumption.
7. Taking the above averments in a limited manner, we find them to be borne out from the records. The enquiry report mentions the following in para 13:
13. I would like to place before the Disciplinary Authority some additional facts for consideration. From the documents the charged officer had submitted ( DE V to DE VIII) it is evident that for a long time, to be precise since 2001, the accused officer has been under treatment for fertility, associated tests/investigations and conception. The medical documents indicate that she was under treatment at various places under several doctors. This has high probability of naturality to quench her thirst for motherhood. We may also keep in kind the attitude of Indian society towards a woman who is not blessed with offspring and the reaction one would receive from colleagues and known persons if they come to know of ones attempts to conceive with help from fertility clinics. Perhaps due to her anxiety the officer was unable to forthrightly inform her medical condition to the authorities fearful of social reactions. At present she is at an advanced stage of pregnancy with twins. I feel, therefore, the Disciplinary Authority may factor in this aspect while deciding the quantum of punishment.
8. While Shri R.V. Sinha, learned counsel for the Respondents would question the legal entitlement of the Inquiry Officer to make such a recommendation, he would not be able to contradict the fact of non-consideration of this important aspect by the UPSC and consequentially by the Disciplinary Authority. Like-wise, the facts reveal that after reference of this case to the UPSC on 7.6.2006, the applicant had submitted a representation dated 1.8.2006 to the Secretary, Department of Economic Affairs (Annexure A/6), which was not forwarded to the UPSC. As the advice of the UPSC was communicated to the Ministry after more than nine months of its original reference in June 2006, non-consideration of the representation by the applicant does not seem justified.. The records do not reveal about its having forwarded to the UPSC. These are some of the important aspects which do not seem to have been considered either by the UPSC while giving their advice or by the Disciplinary Authority while passing the final orders.
9. Rule 29-A of CCS (CCS) Rules, 1965 confers the powers for review on the President in such circumstances. The relevant provision reads as follows:
The President may, at anytime, either on his own motion or otherwise review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought to his notice.
On the basis of the averments made before us and perusal of the records, we find this is a fit case for review of the entire case by the Disciplinary Authority under rule 29-A of the CCS (CCA) Rules.
10. For the foregoing reasons, the OA is disposed of with a direction to the Respondents to reconsider the issue of the penalty imposed in the present case after considering all the relevant facts by treating this OA as a supplementary representation and also keeping in view our observations in the body of the Order. This may be done within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
11. Thereafter, the Respondents, vide their letter dated 11.06.2009, again referred the matter to the UPSC for their advice, and the Commission, vide its letter dated 18.11.2009, reiterated their earlier advice and stated that the penalty of dismissal from service earlier advised and imposed upon the Applicant was not excessive and her request for reconsideration carries no merit and the same should be rejected. They have also commented upon the observation of the Enquiry Officer in para 13 of his report and held that the Enquiry Officer has gone beyond its purview as he was required to confine himself only to the Articles of Charges. However, they have stated that from the records made available by the Respondents, it was found that the Applicant had intimated that her husband was an IPS Officer of U.P. Cadre and that she had a small baby which proved that she was not suffering from any infertility disorder. Moreover, the Medical Certificate issued by the Chief Medical Superintendent, Ferozabad dated 12.12.2005 also indicated that she was pregnant at that time and her expected date of delivery was 13.04.2006. Therefore, the presumption of the Enquiry Officer that there was high probability of naturality to quench her thirst for motherhood was not correct. The relevant part of the aforesaid advice reads as under:-
4.10. So far the contents of COs letter dated 1.8.2006 are concerned the Commission note that this letter does not contain any new material/evidence fact/argument/issue, which was not available or could not be made available by the Deptt. at the time of forwarding the case records to the Commission and was not considered by the Commission. The CO has repeated her earlier arguments in this communication. All her arguments, along with all medical certificates submitted by her to the Inquiry Officer and to the Secretary, Deptt. Economic Affairs, Ministry of Finance, North Block vide her letter dated 8.9.2006, copy addressed to Secretary Union Public Service Commission, were considered by the Commission and found not acceptable as per rule applicable in her case.
4.11 Regarding sanction of her leave the Commission observe that the CO did not apply for leave on medical grounds with the certificate of authorized medical attendant or her case was not referred by the authorized medical attendant , so her leave could not be granted and was treated as unauthorized absence. Further the Medical Certificates and version of the CO show that she had been under treatment since 2001 with different doctors and labs etc. for infertility and was having various medical certificates/lab tests, but she did not submit/furnish these to the concerned authority. Not only this, she did not submit any proof along with her reply to the charge memo. Therefore, the needle of doubt indicates only towards genuineness/authenticity of these Medical Certificates obtained from private doctors/labs. In case, she was indeed/ actually suffering from infertility, she should have consulted Govt. doctors/hospital or authorized medical attendant. But she did not do so, which only shows that she was reluctant that truth may come on surface. It is also stated that she might not have submitted these certificates to the Deptt. with only fear that the Deptt. would have referred the case to Govt. hospital for 2nd medical opinion and definitely the truth would have come up. Nothing prevented her to do so or there was nothing to stop her from submitting these certificates to the Deptt. All these show that the conduct of the CO was not above board. Her activities show that she was not sincere about her service and she willfully remained absent from duty. It can very well be concluded that there was nothing which compelled her to remain absent.
4.12 Regarding the observation of the IO in para 13 of his report as pointed out by the Honble CAT in its order, the Commission observe that the IO has gone beyond his purview because the IO is required to comment only on articles of charge. He has to submit his report in the ambit of articles of charge i.e. whether the charge leveled against the CO is proved, partially proved or not proved. Further, the Commission notes that observation of Honble CAT and mitigating factors mentioned by IO are not included as the part of article of charge. It is also seen from the records made available by the Ministry that the CO vide her letter dated 24.7.1997 had intimated that her husband is an IPS officer of UP Cadre and that I also have a small baby. This proves that she was not suffering from any infertility disorder. Not only this, the certificate issued by Chief Medical Superintendent, Ferozabad dated 12.12.2005 indicates that she was pregnant at that time of 24 weeks and her expected date for delivery was 13.4.2006. Thus, the observation of the IO that this has high probability of naturality to quench her thirst for motherhood is not correct because she was already having a son and was also pregnant as pointed out by CMO.
5. In the light of their findings in respect of article of charge, the Commission consider that the penalty of dismissal from service earlier advised and imposed on Smt. Yogita Swaroop (the CO) was not excessive and her request for reconsideration carries no merit and should be rejected.
6. A copy of the order passed by the Ministry in this case may be endorsed to the Commission for perusal and records.
7. The case records, as per list attached, are returned herewith. Their receipt may kindly be acknowledged.
12. Thereafter, the Disciplinary Authority, vide its order dated 26.11.2009, accepted the recommendation of the UPSC and conveyed its decision to the Applicant vide order dated 26.11.2009. Along with the same, they have also enclosed the copy of the UPSCs advice dated 18.11.2009. The relevant part of the said order reads as under:-
5. And whereas the UPSC vide their letters F.3/65/2009-SI dated 18.11.2009 has advised that in the light of the findings in respect of the article of charges, the penalty of dismissal from service earlier advised and imposed on Smt. Yogita Swaroop was not excessive and that her request for reconsideration carries no merit and should be rejected. A copy of the advice dated 18.11.2009 of the Union Public Service Commission is enclosed.
8. And whereas the President after carefully considering the advice of the UPSC and all relevant documents and facts and circumstances of the case has come to the conclusion that the advice of the Commission on Smt. Yogita Swaroop may be accepted.
9. Now, therefore, the President orders accordingly.
10. A copy of this order will be placed in the C.R. Dossier of the said Smt. Yogita Swaroop.
13. Applicant again challenged the aforesaid order vide OA No.504/2011 and this Tribunal again, vide its order dated 14.11.2011 held that the impugned order dated 26.11.2009 was not maintainable in the eyes of law in view of the judgment of the Apex Court in Union of India and Others Vs. S.K. Kapoor 2011 (4) SCC 589 wherein it has been held that the principles of natural justice require that a copy of the report must be supplied in advance to the concerned delinquent employee so that he may have opportunity of rebuttal. The relevant part of the said order reads as under:-
10. Considering the totality of the facts and circumstances of the case and guided by the law laid by Honble Apex court in S. K. Kapoors case (supra), we come to the considered view that the impugned order dated 26.11.2009 is not sustainable in the eyes of law as the applicant has been deprived of the opportunity to represent against the UPSC advice which has been fully relied on by the competent authority in passing the penalty order. Hence, the impugned order dated 26.11.2009 is liable to be quashed and set aside. We order accordingly. In the result, the applicant shall be reinstated in service. The respondents have the liberty to proceed with the disciplinary case where the illegality has crept in. The competent authority would decide the case afresh without being biased and influenced by the earlier orders. While deciding the disciplinary proceeding against the applicant, the competent authority is directed to decide the interregnum period from the date of applicants dismissal from service to the date she joins her service pursuant to this direction and order.
11. In terms of our above orders, directions and observations, the Original Application is allowed, leaving the parties to meet their respective costs.
14. The Respondents challenged the aforesaid order before the Honble High Court of Delhi vide Writ Petition No.265/2012 Union of India Vs Yogita Swaroop and Another and the High Court dismissed it vide order dated 13.01.2012 with modification directing the Respondent No.1 to reinstate her in service without any back wages for the sole purpose of completing the departmental proceedings. The relevant part of the said judgment reads as under:-
7. Consequently, we feel that the direction of the Tribunal with regard to the reinstatement ought to be modified in terms of the decision of the Supreme Court on this aspect of the matter. Therefore, we direct that the respondent No.1 shall be re-instated to service but that would be without any back wages and other service benefits and her re-instatement shall be solely for the purpose of completing the departmental proceedings. Her entitlements, if any, would be adjudicated by the authorities depending upon the result of the disciplinary proceedings.
8. We also direct that since the copy of the UPSC advice is already with the respondent No.1, she will make a representation within two weeks and the disciplinary authority shall take a decision within 12 weeks thereafter.
9. With this modification of the impugned order, the writ petition stands disposed of. There shall be no order as to costs.
15. Thereafter, the Applicant made a detailed representation to the Disciplinary Authority reiterating that she had applied for leave after informing Shri Anup Agarwal, Special Secretary (Planning), Government of Uttar Pradesh vide her application dated 11.06.2001. Thereafter, she was undergoing treatment and there were lots of complications. She has also given the details of her treatment in her representation. As regards the leave application is concerned, she has stated that it was recommended by the CMO on 30.10.2004 and the same was received by the Principal Secretary, Planning. However, the leave was not sanctioned due to administrative reasons as her deputation with the U.P. Government has already lapsed on 09.06.2002. Further, her letter to the Principal Secretary (Planning) seeking clarification regarding extension of deputation was not replied by the Department. It was for the said reason that her leave was not sanctioned by the U.P. Government. Meanwhile, the Respondents have issued the OM dated 13.09.2004 for initiating departmental proceedings against her. She has submitted her defence statements on 15.11.2004 giving necessary clarifications regarding her medical condition and also on the charges levelled against her. However, since she was at the advanced stage of pregnancy, she applied for maternity leave on 12.12.2005 in the prescribed format but the Department did not sanction the same. She has also stated that IOs report was received by her in April, 2006 but even though her expected date of delivery was 13.04.2006, because of the trauma of departmental enquiry, she underwent premature labour on the morning of 5th February, 2006 and she was immediately rushed to Ganga Ram Hospital where she delivered premature twin babies on 08.02.2006 who were very weak and severely under weight. Her babies were in the neonatal ICU at Ganga Ram Hospital for over a month. Even after discharge from the hospital, her babies were under constant medical care of nurses requiring constant supervision all the time. Therefore, there was delay in responding to the IOs report. However, after her babies were out of danger, she immediately responded to the IOs report on 01.08.2006. She has also stated that the observation of the IO in para 8 of its report that she, vide her letter dated 24.07.1997, had intimated that her husband was an IPS Officer of U.P. Cadre and she also had a small baby and, therefore, she was not suffering from any infertility disorder, was totally false. She has further stated that the said charge was levelled behind her back whereas the actual fact was that her child was suffering from genetic disorder (afflicted with down synchdrome, with delayed milestones in growth) and later she had developed infertility problems subsequent to suffering from uterine tuberculosis and her quench for motherhood of normal child continued notwithstanding the child born in 1995. The quench was further fortified from the fact that in spite of her ailing condition from TB (pulmonary and uteriene), she had undergone the process of IVF, although complicated, yet at the cost of her life but to continued with the hope of quenching for motherhood. She has also assured that she would work with full devotion to duties and has approximately 19 years of service which is yet to be completed by her.
16. However, the Disciplinary Authority, vide order dated 02.07.2012, again rejected her representation and retained the penalty of dismissal from service issued to her vide order dated 26.11.2009. She has challenged the aforesaid order in this OA on various grounds but she very candidly admitted that though there was no sanction of the leave applied for, she continued to communicate with the concerned authorities and the communication channel was never closed. She has also stated that the UPSCs observations were not based on facts. She reiterated that her absence from duty was never willful but it was due to circumstances beyond her control. Further, she has stated that her intention to serve the Respondent is manifest from the fact that during the pendency of the disciplinary proceedings she has joined service on 29.11.2005 but the Respondents placed her under suspension w.e.f. 18.01.2006.
17. She has also stated that she has been meted out discrimination vis-`-vis other employees like Shri A.K. Belwal who was on a foreign assignment and later retired. He defied the Government orders to join back duty in the Cadre but he did not. However, in his case, only a mild penalty of cut in pension was imposed. In the case of another officer, Ms. A. Srija, IES 1996, the Department asked her to join back duty but she also did not join back. The Department, in her case did not take any action or imposed any penalty. Rather, the Department condoned all her absence from duty. On the other hand, the punishment of dismissal was imposed upon Applicant which is absolutely disproportionate and shocking the conscience of the court.
18. The Applicant has also relied upon the Circular issued by the Director General of P&T vide its Letter No.6/28/70-Disc.I (SPB-I) dated the 5th October, 1975. The relevant part of the said circular reads as under:-
2. It is made clear that a Government servant who remains absent unauthorisedly without proper permission should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32(2) (a) of the CCS (Leave) Rules, 1972. However, the disciplinary authority should consider the grounds adduced by the Government servant for his unauthorized absence before initiating disciplinary proceedings. If the disciplinary authority is satisfied that the grounds adduced for unauthorized absence are justified, the leave of the kind applied for and due and admissible may be granted to him.
19. As far as the doctrine of proportionality is concerned, the Applicant has relied upon the judgment of the Apex Court in the case of Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Association and Another 2007 (4) SCC 669 where it has been held as under:-
DOCTRINE OF PROPORTIONALITY
17. So far as the doctrine of proportionality is concerned, there is no gainsaying that the said doctrine has not only arrived at in our legal system but has come to stay. With the rapid growth of Administrative Law and the need and necessity to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by Courts. If an action taken by any authority is contrary to law, improper, unreasonable, irrational or otherwise unreasonable, a Court of Law can interfere with such action by exercising power of judicial review. One of such modes of exercising power, known to law is the 'doctrine of proportionality'.
18. 'Proportionality' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities.
20. She has also relied upon the judgment of the Apex Court in the case of Chairman-cum-Managing Director, Coal India Limited and Another Vs. Mulul Kumar Choudhuri and Others 2009 (15) SCC 620 wherein it has been held that the extreme punishment of removal from service in certain circumstances is not only unduly harsh but grossly in excess to the allegations. The relevant part of the said judgment reads as under:-
21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.
21. Further, she has relied upon the judgment in the case of Seema Gupta Vs. Guru Nanak Institute of Management 135(2006) DLT 404 wherein the Honble High Court of Delhi has considered the case of female employees who avail Maternity Leave and as to how such cases have to be considered. The relevant part of the said order reads as under:-
24. The importance of treating female employees who avail of maternity leave and who might face problems in raising infants, was foreseen by the rule making authority, when Rule 43 (4)(b) was framed. The provision enables the employer to grant, and the employee to seek up to one years' leave in continuation of the initial maternity leave. The concern shown may be gauged by the fact that the employee is absolved of the normal requirement of having to produce a certificate- which implies that medical concerns alone are not determinative in granting such extended leave. The provision, in my opinion, has to be construed in the background of the Universal Declaration of Human Rights and CEDAW, as an integral part of the State's obligation to promote the Directive Principle embodied in Article 42, of the Constitution.
25. The nature of the right, in the above rule, to my mind, also constitutes a special provision under Article 15(3). Although the respondent institution is not "State" yet, it is admittedly governed by the CCS Rules. In these circumstances, it has a duty to fulfill those conditions. The present case, and application of Rule 43, falls into what may be justly described as a "horizontal" application of the fundamental right, viz Article 15(3) in order to give effect to Article 42. Fundamental rights are ordinarily enforceable against State or state agencies, or those "authorities" acting as instrumentalities of the state. Yet, once the object of a fundamental right, such as for instance, the equality clause, or protective legislation relating to gender, is sought to be given shape through some statute, and made applicable to non-state "actors" such intervention is known as horizontal application of the concerned fundamental right. In this case, Rule 43 is an instance of application of gender protective rights to public, but non state entities like the respondent institution. In another sense, the rule has to be understood as a larger social concern for extending special care to employees who are given maternity benefits. It promotes non-discriminatory practices, and forces employers to give reasonable accommodation to female employees.
26. Viewed from this perspective, the contentions of the respondents about the application of the rule in the Executive Committee of Vaish Degree College case (supra) and the Indian Oil Corporation case (supra) are inapt. This is not a traditional case of an employee seeking enforcement of her contract of service, but her lament that in spite of protective provisions, relating to maternity, and in spite of her request for extended leave, which was permissible, the employer, in disdain of those norms, terminated her from the service. I am also not impressed with the submission that the petitioner was an employee with lesser rights, since she was on ad-hoc basis. As per the version of the respondent, she was entitled to the benefits under Rule 43.
27. The respondent, in my considered opinion treated the request for extension of leave by five months, as a normal request, without applying its mind to the peculiarities of the case. It has not furnished any reasons or justification as to why the right to claim the extended period, of one years' leave, a valuable one at that, had to be rejected. Exigencies of service bind all employers; that reason would be available in all cases where a request for extended maternity leave is sought. If such reasons given in a routine manner are to be upheld, the right for extended maternity leave of up to one year, would be meaningless, as every employer can cite that as a ground for denial. The special nature of the right then would exist only on paper, in negation.
28. For the foregoing reasons, the impugned termination letter cannot be sustained; it is illegal, and is hereby quashed. The respondent is directed to reinstate the petitioner to her post; the petitioner shall also be entitled to full arrears of salary. The respondent No. 1 is directed to comply with the directions regarding reinstatement and payment of arrears of salary, within six weeks from today. It shall also pay costs quantified at Rs. 15,000/- to the petitioner, within the said six weeks.
29. The writ petition is allowed in the above terms.
22. The Respondents have filed their reply. They have stated that while the enquiry was in progress, the Applicant reported to the cadre on 29.11.2005 and preferred a letter dated 30.11.2005 that she was not in a position to resume duty and sent another letter dated 12.12.2005 applying for maternity leave from 15.12.2005. Her request was examined by the Respondents but since the enquiry was in progress, it was decided with the approval of the competent authority to place her under suspension and to complete the enquiry within 30 days. Accordingly, she was placed under suspension with effect from 18.01.2006 and the Enquiry Officer submitted his report on 30.01.2006 wherein it has been held that both the charges have been proved. The report of the IO was examined and with the approval of the competent authority and a copy of the same was forwarded to her on 07.03.2006. She did not submit any representation against it but made a representation against the order of suspension on 18.01.2006 and it was rejected. As she did not make any representation against the enquiry report, it was decided with the approval of the Disciplinary Authority to impose a penalty by referring the case to the UPSC for their advice. Accordingly, the matter was referred to the UPSC along with relevant documents on 07.06.2006. Meanwhile, the Review Committee in its meeting held on 21.02.2007 decided to continue her suspension for 180 days beyond 08.03.2007. The UPSC, vide its letter dated 28.03.2007, after taking into account all aspects relevant to the case, advised that the ends of justice would be met in her case if the penalty of dismissal from service was imposed on the Applicant. Accordingly, the penalty of dismissal was imposed on her on 10.04.2007. She challenged the aforesaid order vide OA No.579/2008 (supra) before this Tribunal, and this Tribunal, vide order dated 23.1.2009, directed the Respondents to reconsider the penalty. In compliance of the aforesaid directions, the matter was placed before the Disciplinary Authority in terms of Rule 29-A of the CCS (CCA) Rules, 1965 and again the matter was referred to the UPSC for their advice on 11.06.2009. Again, the UPSC, vide their letter dated 18.11.2009, advised for the imposition of the same penalty and accordingly the Applicant was imposed with the penalty of dismissal from service w.e.f. 26.11.2009. She again challenged the aforesaid order before this Tribunal vide OA No.504/2011 (supra) and this Tribunal vide order dated 14.11.2011 quashed and set aside the same. But the Respondents challenged the aforesaid order of this Tribunal before the High Court of Delhi in W.P. ( C) 265/2012 and the High Court modified the same. Thereafter, she submitted a representation on 10.12.2012 and the same was decided by the competent authority but it was rejected vide order dated 02.07.2012. The said order is again being challenged in this OA.
23. The Respondents further contended that the aforesaid order dated 10.04.2007 has been issued after following the necessary rules/instructions and provisions. Applicant has defied the Government instructions and remained on unauthorized absence from 11.06.2001 thereby conducting herself in an unbecoming manner, exhibiting gross indiscipline and lack of devotion to duty.
24. The learned counsel for the Respondents Shri Sinha has also submitted that the leave is not the prerogative right of the Government servant as provided under Rule 7 of the CCS (Leave) Rules, 1972 which reads as under:-
7. Right to leave:
(1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.
25. Further, he has stated that the Applicant has submitted the first leave application on 30.04.2004 much after the charge sheet was issued to her. The said application for the grant of leave for the period from 01.01.2001 to 31.12.2004 was not granted as the same was not covered under Rule 19 of the CCS (Leave) Rules, 1972 which reads as under:-
19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants:
1[(1) An application for leave on medical certificate made by-
(i) a Gazetted Government servant, shall be accompanied by a medical certificate in Form 3 given by a Central Government Health Service (CGHS) Doctor if such a Government servant is a CGHS beneficiary or by a Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by Competent Authority in respect of any particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:
Provided that the Gazetted Government servant who is a Central Government Health Service beneficiary, if at the time of illness, is away from CGHS area or proceeds on duty outside the Headquarters will produce Medical Certificate (MC) or Fitness Certificate (FC) in Form 3 and Form 5, as the case may be, given by an Authorized Medical Attendant;
(ii) a non-Gazetted Government servant, shall be accompanied by a medical certificate Form 4 given by a CGHS Doctor if such a Government servant is a CGHS beneficiary or by Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital, recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by the Competent Authority in respect of particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:
Provided that the non-Gazetted Government servant who is a CGHS beneficiary, if at the time of illness is away from CGHS area or proceeds on duty outside the Headquarters will produce M.C. or F.C. in Form 4 or 5, as the case may be, given by an Authorized Medical Attendant (AMA) or by Registered Medical Practitioner (RMP) if there is no AMA available within a radius of 8 kilometers (kms) from his residence or place of temporary stay outside his Headquarters and also in the circumstances when he finds it difficult to obtain MC or FC from a CGHS Doctor or an Authorized Medical Attendant;
defining as clearly as possible the nature and probable duration of illness.] NOTE.- In the case of non-Gazetted Government servant, a certificate given by a registered Ayurvedic, Unani or Homoeopathic medical practitioner or by a registered Dentist in the case of dental ailments or by an honorary Medical Officer may also be accepted, provided such certificate is accepted for the same purpose in respect of its own employees by the Government of the State in which the Central Government servant falls ill or to which he proceeds for treatment.
(2) A Medical Officer shall not recommend the grant of leave in any case in which there appears to be no reasonable prospect that the Government servant concerned will ever be fit to resume his duties and in such case, the opinion that the Government servant is permanently unfit for Government service shall be recorded in the medical certificate.
(3) The authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date.
(4) It shall be the duty of the Government Medical Officer referred to in sub-rule (3) to express an opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended and for that purpose may either require the applicant to appear before himself or before a Medical Officer nominated by himself.
(5) The grant of medical certificate under this rule does not in itself confer upon the Government servant concerned any right to leave; the medical certificate shall be forwarded to the authority competent to grant leave and orders of that authority awaited.
(6) The authority competent to grant leave may, in its discretion, waive the production of a medical certificate in case of an application for leave for a period not exceeding three days at a time. Such leave shall not, however, be treated as leave on medical certificate and shall be debited against leave other than leave on medical grounds.
26. As regards proportionality of the punishment is concerned, the learned counsel has stated that only in rarest of the rare cases that too where the conscience of the court is shocked, the Court can interfere with the punishment imposed on the delinquent official. However, in this case, the Applicants misconduct was manifestly clear and the punishment imposed upon her is quite proportionate to the gravity of the offence committed by her. In this regard, he has also relied upon the judgment of the Apex Court in the case of Chennai Metropolitan Water Supply and Sewerage Board and Others Vs. T.T. Murali Babu 2014 (3) SLR 398 SC wherein it has been held as under:-
30. In Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others[(2009) 15 SCC 620], the Court, after analyzing the doctrine of proportionality at length, ruled thus: -
19. The doctrine of proportionality is, thus, well-recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.
20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.
21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reason for his absence by stating that he did not have intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.
27. As regards parity of punishment is concerned, he has stated that nobody has got a right to say that only a particular punishment awarded to another should be awarded to him/her also.
28. The learned counsel has also relied upon the judgment of the Apex Court in the case of Government of India and Another Vs. George Philip 2006 (13) SCC 1 wherein the order of the disciplinary authority directing removal or dismissal of an employee on the ground of long absence or overstay of leave has been upheld. The relevant part of the said judgment reads as under:-
15. There are several decisions of this Court wherein the order of disciplinary authority directing removal or dismissal of an employee on the ground of long absence or overstay of leave has been upheld. In Mithilesh Singh v. Union of India & Ors. (2003) 3 SCC 309, the appellant who was constable in Railway Protection Special Force left duty without leave being granted and returned after 25 days and then sought leave. The order of removal from service passed by the authorities was set aside by a learned Single Judge in a writ petition filed by the employee who directed that some punishment other than order of removal or dismissal or compulsory retirement from service may be passed. The Division Bench of the High Court restored the order passed by the disciplinary authority and the said judgment was affirmed by this Court in appeal on the ground that the scope of interference with punishment awarded by the disciplinary authority is very limited and unless the punishment is shockingly disproportionate, the Court cannot interfere with the same and the employee having failed to show any mitigating circumstances in his favour, the punishment awarded by the authorities could not be characterized as disproportionate or shocking. In Delhi Transport Corporation v. Sardar Singh (2004) 7 SCC 574, several cases of conductors involving absence from duty ranging from 45 days to 294 days without sanctioned leave were considered. The order of the Single Judge of the High Court holding that the employer was justified in passing the order of termination/removal was affirmed by this Court reversing the order of Division Bench of the High Court, wherein the order of the Industrial Tribunal refusing to accord approval to the punishment had been approved. In Union of India & Ors. v. Ghulam Mohd. Bhat (2005) 13 SCC 228, the order of removal from service passed against the respondent, who was a constable in CRPF on the ground that he had overstayed his leave by 315 days was affirmed by this Court reversing the decision of the High Court, by which it was held that the misconduct alleged called for a minor punishment and not a punishment of removal from service. In State of Rajasthan & Anr. v. Mohd. Ayub Naz (2006) 1 SCC 589, the respondent who was an employee of cooperative department remained absent for about 3 years and his service was terminated after a departmental enquiry. The learned Single Judge of the High Court took the view that the facts and circumstances of the case called for a lesser punishment and thus directed that the employee shall be deemed to have retired after having put in 20 years of service with all retiral benefits, which order was affirmed in letters patent appeal before the Division Bench. This Court set aside the order of the High Court with the observation that while considering the quantum of punishment, the role of administrative authority is primary and that of Court is secondary, confined to see if discretion exercised by the disciplinary authority caused extensive infringement of rights and held that the punishment of removal was absolutely correct.
16. The contention of Shri Raju Ramachandran, learned senior counsel that respondent was in a dilemma as he had not been able to complete the research work for award of a Ph.D. degree and, therefore, he could not return to India to join duty and also that if the respondent had completed his Ph.D., he would have been more useful and advantageous to BARC, cannot be accepted. Bhabha Atomic Research Centre is a premier scientific institution of the country where research is conducted in the field of atomic energy. The work is basically of experimental nature for which very expensive equipment has to be acquired. If the employees of BARC are allowed to proceed on long leave in order to acquire some higher degree or expertise which may advance their own career prospects, the ultimate sufferer would be BARC as the equipment on which they are working would lie idle for a long period. The nature of work being highly specialized, there would not be many people in the organisation who may carry on the work in that particular field unlike a factory where one workman may be substituted by another to work on a particular machine. By the time the employee returns for work, the equipment may become obsolete resulting in wastage of public money. The fact that while sanctioning leave a specific undertaking was sought from the respondent that he would not register for a Ph.D. degree and that he would not ask for extension of leave, clearly shows that BARC was guarding against such a contingency as for completing Ph.D. in the field of atomic energy and related subjects requires considerable amount of practical work, which cannot normally be completed in two years. At any rate, the respondent being fully aware of the conditions under which he was sanctioned leave, viz., that he was not to register for Ph.D. degree and was not to make a request for extension of leave beyond two years, it was not open to him to enroll himself for Ph.D. and then seek extension of leave on the ground that he had not been able to complete the research work for award of the degree and should not be compelled to leave his work midway.
17. We are, therefore, of the opinion that in the facts and circumstances of the case, the punishment of compulsory retirement imposed upon the respondent cannot be held to be disproportionate, much less shockingly disproportionate, and there was absolutely no ground on which the Tribunal or the High Court could interfere with the order passed by the appellants.
29. We have heard the learned counsel for the Applicant Shri S.K. Dubey and Shri Rajmangal Kumar and the learned counsel for the Respondents Shri R.V. Sinha. We have also perused the Departmental Enquiry File in respect of the Applicant made available by the Respondents. First of all, we observe that the Applicants case has been pending before this Tribunal from the year 2008 and it did not reach its finality for all these years due to the fact that two earlier orders of this Tribunal passed were in peace-meal with the pious hope that the Respondents would rectify its mistakes and take a well reasoned decision considering the entire facts and circumstances of the case. But the Respondents continued to hold in an arbitrary manner that the punishment of dismissal from service imposed upon the Applicant is justified.
30. In our considered view, the first Article of Charge against the Applicant itself is not maintainable. It only says that the Applicant while posted as Deputy Director (Planning Division), Government of Uttar Pradesh on deputation basis had proceeded on leave on 11.06.2001 informing Special Secretary (Planning), Yojna Bhawan that she has to proceed to Delhi and Bombay for post operative and other investigations and she did not report for duty since then. Proceeding on leave after informing the authority concerned by itself is not a misconduct. In fact, she informed the authority concerned that she was proceeding to Delhi and Bombay for some post operative and other investigations. The only allegation in the second Article of Charge also is that she did report back for duty even after she was directed to do so vide its letters sated 16.09.2003 and 03.12.2003 but she was continuously absent unauthorizedly w.e.f. 11.06.2011. It is well settled law that every unauthorized absence of an employee from duty cannot be held to be misconduct. In order that absence from duty to be considered as misconduct, the Department should have the case that the said absence was willful. Unless and until there was an element of willfulness in the unauthorized absence, the employee cannot be held to have violated Rule 3(1)(ii)(iii) of the CCS (Conduct) Rules, 1964. Therefore, before issuing any Article of Charge, the competent authority should consider whether absence was willful or it was because of any compelling circumstances beyond the control of the Applicant. If the absence was under compelling circumstances and it was not possible for the employee to report or perform the duty, such absence cannot be held to be willful. In this case neither the Enquiry Officer nor the Disciplinary Authority has held that the absence of the Applicant was willful. The Enquiry Officer in his report has only held that the Applicant has proceeded on leave from 11.06.20001 and her absence was unauthorized. He has not mentioned anywhere in his report that her absence from duty was willful. On the other hand, the Applicant has repeatedly stated that her absence was due to reasons beyond her control. The Disciplinary Authority has also, in his successive three orders dated 10.04.2007, 26.11.2009 and 02.07.2012 never held that the Applicants absence from duty was willful. In this regard, the judgment of the Apex Court in the case of Krushnakant B. Parmar Vs. Union of India and Another Civil Appeal No.2106/2012 decided on 15.02.2012 (citation) is relevant and its operative part reads as under:-
15. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion of duty and his behaviour was unbecoming of a Government servant.
16. The question whether unauthorized absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is willful or because of compelling circumstances.
17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence can not be held to be willful.
18. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is willful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is willful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
31. Now the question is regarding the validity of the OM dated 13.09.2004 issued to the Applicant on behalf of the President (Disciplinary Authority) under Rule 14 of the CCS (CCA) Rules, 1965. According to the said Memorandum, a statement of the imputations of misconduct or misbehaviour in support of each article of charge, a list of documents by which and a list of witnesses by whom, the article of charge were proposed to be sustained, were enclosed. But admittedly, the Disciplinary Authority did not furnish any list of witnesses with the said OM or subsequently whereas it is a mandatory provision under sub-rule (3) of the Rule 14 of the CCS (CCA) Rules, 1965, that the statement of imputations of misconduct shall contain not only the list of documents but also the list of witnesses by whom the Articles of Charge are proposed to be sustained. The said sub-rule read as under:-
3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
32. In its judgment in the case of Roop Singh Negi Vs. Punjab National Bank & Others 2009 (2) SCC 570 the Apex Court held that documentary evidence are required to be proved not by mere production of the documents before the Inquiry Officer but it has to be proved by examining the witnesses. The relevant part of the said judgment reads as under:-
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
33. It is also one of the basic principles of natural justice that the delinquent employee should have the reasonable opportunity to defend his/her case in the departmental proceedings against him/her. For the said purpose, during the enquiry, the Disciplinary Authority shall ensure that the oral and documentary evidences are produced before the Enquiry Officer, the witnesses are examined on behalf of the Disciplinary Authority and they are allowed to be cross-examined by the Government servant. The Enquiry Officer may also question the witnesses for necessary clarifications. It is only after considering the statements of the witnesses during the cross-examination, the Enquiry Officer can come to the conclusion whether the charges have been proved or not. Therefore, in the absence of any witnesses, if the Enquiry Officer comes to the conclusion that the charges have been proved, such findings can only be termed as perverse and they cannot be accepted. Sub-Rule (14) of Rule 14 of the CCS (CCA) Rules, 1965 is relevant and it reads as under:-
(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
34. In the present case, the Applicant has stated in her defence statement and various other representations to the Respondent No.1 that she had been in continuous correspondence with the officers both in the office of the Respondent No.1 and Government of Uttar Pradesh. One of the document relied upon by the Respondent No.1 is a letter dated 05.01.2003 from Arvind Narayan Mishra, Special Secretary to Mrs. Mala Dutt, Director, Department of Economic Affairs stating that the Applicant had applied for leave. She has also stated that she has informed Sri Anoop Aggrawal, Special Secretary in 2001 and 2002 about her absence on medical grounds supported by Medical Certificate. It was also the case of the Applicant that she met Mrs. Mala Dutt, Director, IES cadre, explaining her that since she was undergoing medical treatment and she was not in a position to join official duties with immediate effect as warranted in the OM dated 03.12.2003 requiring her to report back to cadre by 31.12.2003. Mrs. Dutt then asked her to get her leave regularized and also to send a letter for extension of deputation from U.P. Govt. but under no circumstances, she insisted that she should join in spite of her ill health. Prior to that date also, she had sent an application dated 26.12.2003 to Shri Munshi Ram, Under Secretary, Department of Economic Affairs explaining that she was on EOL and she was undergoing treatment in Mumbai and Delhi. She had produced the said letter as a defence document during the enquiry but the Enquiry Officer did not consider the same at all. However, none of those persons have been made witnesses by the prosecution. The Apex Court in the case of State of Madhya Pradesh Vs. Chintuman Sadashiva Waishampayan AIR 1961 SC 1623 held that the evidence of the opponent should be taken in his presence and the right to cross-examine the witnesses who give evidence against him is a very valuable right. The relevant part of the said judgment reads as under:-
.Whenever it is urged before the High Court that as a result of such orders the public officer has been deprived of a reasonable opportunity it would be open to the High Court to examine the matter and decide whether the requirements of Art. 311(2) have been satisfied or not. In such matters it is difficult and inexpedient to lay down any general rules; whether or not the officer in question has had a reasonable opportunity must always depend on the facts in each case. The only general statement that can be safely made in this connection is that the departmental enquiries should observe rules of natural justice and that if they are fairly and properly conducted the decisions reached by the enquiry officers on the merits are not open to be challenged on the ground that the procedure followed was not exactly in accordance with that which is observed in Courts of Law. As Venkatarama Aiyar, J. has observed in Union of India v. T. R. Varma, 1958 SCR 499 at p. 507 : ((S) AIR 1957 SC 882 at p. 885) "stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them". It is hardly necessary to emphasize that the right to cross-examine the witnesses who give evidence against him is a very valuable right, and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice. That is the view taken by the High Court, and in the present appeal which has been brought to this Court under Art. 136 we see no justification for interfering with it. In this connection it would be relevant to refer to the decision of this Court in Khem Chand v. Union of India, 1953 SCR 1080 at p. 1096 : (AIR 1958 SC 300 at p. 307) where this Court has emphasized the importance of giving an opportunity to the public officer to defend himself by cross-examining the witnesses produced against him.
35. In Janakdhari Sharma vs. Jhapsi Singh ILR (1958) 37 Patna 1006, it has been held that when the accused was denied the opportunity to cross-examine the witness, the conviction based on the statement of the witness cannot be upheld and that such evidence must be excluded from consideration. Denial of permission to cross-examine the witnesses is not proper and against all principles of justices. Again in the case of Mohan Lal Shamji Soni vs. Union of India, 1991 SUPP (1) SC 271, the Honble Supreme Court has held that denial of opportunity to cross-examine the witnesses is contrary to law. The Honble Supreme Court in the case of A. Sudhakar vs. Post Master General, Hyderabad and anr., 2006 (4) SCC 348 has dealt with the procedural requirements of Article 311 (2) and observed as follows:-
25. In terms of Article 311 (2) of the Constitution of India, the procedural requirements which were required to be followed were as under:
(i) opportunity to the concerned officer to deny his guilt and establish his innocence which means he must be told that what the charges against him are and the allegations on which such charges are based;
(ii) he must be given a reasonable opportunity to cross-examine the witnesses produced against him and examine himself or other witnesses on his behalf; and
(iii) he must be given opportunity to show cause that the proposed punishment would not be proper punishment to inflict which means that the tentative determination of the competent authority to inflict one of the three punishments must be communicated to him.
36. Further, the requirements contained in Article 311 (2) of the Constitution of India are held to be part of principles of natural justice in view of the decision of the Honble Supreme Court in the case of Khem Chand vs. KVS, 1958 SCR 1081.
37. The Enquiry Officer has also not conducted the enquiry in a proper and in a fair manner. He himself has admitted in his report that the Applicant did not report for duty as she was under confusion about her status with regard to her service and she was in touch with the cadre as well as Planning Department. He has observed further in his report that it was evident that for a long time, to be precise since 2001, the accused officer has been under treatment for fertility, associated tests/investigations and conception. The medical documents indicate that she was under treatment at various places under several doctors. This has high probability of naturality to quench her thirst for motherhood. We may also keep in mind the attitude of Indian society towards a woman who is not blessed with offspring and the reaction one would receive from colleagues and known persons if they come to know of ones attempts to conceive with help from fertility clinics. Perhaps due to her anxiety the officer was unable to forthrightly inform her medical condition to the authorities fearful of social reactions. At present she is at an advanced stage of pregnancy with twins. In other words, the Enquiry Officer was well aware that the absence of the Applicant from duty was not willful but it was due to reasons beyond her control. Even then, the Enquiry Officer, in an arbitrary manner, held that the charges have been proved. Such a report is nothing but a perverse one.
38. Further, the Enquiry Officer fail to follow the procedure prescribed in sub-rule (18) of Rule 14 ibid which is as under:-
(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
The Apex Court in the case of Ministry of Finance and Another Vs. S.B. Ramesh AIR 1998 SC 853 held as under:-
Under sub-rule (18) of Rule 14 of the CCS (CCA) Rules, it is incumbent on the Enquiry authority to question the officer facing the charge, broadly on the evidence appearing against him in a case where the officer does not offer himself for examination as a witness. This mandatory provision of the CCS (CCA) Rules has been lost sight of by the Enquiry authority. The learned counsel for the respondents argued that as the inquiry itself was held ex parte as the applicant did not appear in response to notice, it was not possible for the Enquiry authority to question the applicant. This argument has no force because, on 18-6-91 when the inquiry was held for recording the evidence in support of the charge, even if the Enquiry Officer has set the applicant ex parte and recorded the evidence, he should have adjourned the hearing to another date to enable the applicant to participate in the enquiry hereafter/or even if the inquiry authority did not choose to give the applicant an opportunity to cross-examine the witness examined in support of the charge, he should have given an opportunity to the applicant to appear and then proceeded to question him under sub-rule (18) of Rule 14 of CCS (CCA) Rules. The omission to do this is a serious error committed by the enquiry authority.
39. The Disciplinary Authority also did not consider the observations of the Enquiry Officer in his report or the defence statement submitted by the Applicant. He has also forwarded documents to the UPSC along with the CR dossier of the Applicant which is an extraneous material for its consideration.
40. In the above facts and circumstances of the case, we are of the considered view that the enquiry against the Applicant was not conducted in a fair manner and in accordance with the principles of natural justice. The report of the Enquiry Officer is totally perverse as the charge against the Applicant has not been proved based on any evidence listed on the touchstone of cross-examination of witnesses. The UPSC has also exceeded its jurisdiction by even prescribing the exact punishment to be imposed upon the Applicant. The Disciplinary Authority has also abdicated its statutory responsibility by leaving the entire matter to be decided by the UPSC and merely issued the order of punishment without any application of mind. We in the above facts and circumstances of the case, quash and set aside the impugned order of the Disciplinary Authority dated 02.07.2012 and the UPSCs advice dated 28.03.2007. Consequently, the Applicant shall be reinstated in service forthwith, with all consequential benefits with effect from 29.11.2005, i.e., the date she has reported for duty. As regards the period from 11.06.2001 to 28.11.2005, the Respondents shall regularize the same by granting her the leave of the kind due including maternity leave, extraordinary leave with or without medical certificates, as the case may be, etc. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. No costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh