Central Administrative Tribunal - Delhi
Shri Lalit Kumar Sharma vs Capart (Council For Advancement Of ... on 28 November, 2008
Central Administrative Tribunal, Principal Bench TA No. 218/2007 New Delhi this the 28th day of November, 2008 Honble Mr.L.K.Joshi, Vice-Chairman (A) Honble Mrs.Meera Chhibber, Member (J) Shri Lalit Kumar Sharma, S/o Late Shri S.P. Sharma, R/o B-165, West Patel Nagar, New Delhi-110008. Applicant (By Advocate: Shri G.P. Singh and Shri V.S. Chauhan) V e r s u s- 1. CAPART (Council for Advancement of Peoples Action & Rural Technology), Through its President, Ministry of Rural Development, Govt. of India, Krishi Bhawan, New Delhi-110001. 2. Director General, CAPART, India Habitat Centre, Zone VA, (Core C), 2nd Floor, Lodhi Road, New Delhi-110 003. 3. Deputy Director General, CAPART, India Habitat Centre, Zone-V-A, (Core-C), 2nd Floor, Lodhi Road, New Delhi-110003 4. Chief Administrative Officer, CAPART, India Habitat Centre, Zone-V-A, (Core-C), 2nd Floor, Lodhi Road, New Delhi-110003 ...Respondents. (By Advocate: Shri Alakh Kumar) ORDER Mr. L.K.Joshi, Vice Chairman(A):
Mr.Lalit Kumar Sharma, the Applicant herein, was Senior Accountant in the Council for Advancement of Peoples Action and Rural Technology (CAPART), when he was transferred from Delhi to Guwahati by an order dated 18.02.1999. His not joining at Guwahati, on the grounds of his parents illness, as claimed by him, cost him his job under the first Respondent. Punishment of dismissal was awarded to him by order dated 5.02.2003 of the disciplinary authority. The statutory appeal, preferred by the Applicant against the order of the disciplinary authority, did not find favour with the appellate authority who rejected it by his order dated 9.03.2005. The order dated 18.02.1999 transferring the Applicant to Guwahati and orders of the disciplinary and appellate authorities have been assailed in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. The circumstances, in which this OA arose have been delineated in some detail hereafter. Following his transfer to Guwahati by the aforementioned order, the Applicant met the Minister of State for Rural Areas and Employment and gave him a brief representation dated 25.02.1999 stating that he was not in a position to leave Delhi due to some unavoidable circumstances. The first Respondent, however, relieved the Applicant from the headquarters by order dated 5.03.1999 with instruction to join duty at his place of posting. It, inter alia, stated that non-compliance of the order would be viewed seriously. He also received a memorandum the next day, i.e. 6.03.1999, asking him to show cause why action should not be initiated against him under Rule 20 of the CCS (Conduct) Rules, 1964 for bringing political influence to further his self interest in respect to his transfer. This was an allusion to his meeting with the Minister of State, to which the latter had taken exception. The Applicant tendered an apology by his letter dated 9.03.1999 pleading ignorance of rules.
3. On 6.04.1999 again the Applicant in a laconic communication informed the Chief Administrative Officer of the first Respondent that he could not join his duty at the place of posting due to some domestic problem. This was only marked to the aforesaid officer for his information. On 16.06.1999, the first Respondent issued a memorandum calling for the explanation of the Applicant as to why he had not reported for duty at the Regional Centre, Guwahati. It was mentioned in the memorandum that the Member Convener of the Regional Centre at Guwahati had reported that the Applicant had not joined his duty at Guwahati. It was also mentioned that the work of accounts at the Regional Centre was suffering due to the Applicants absence. On 5.07.1999, the Applicant replied to the memorandum stating that his old parents were in critical condition. It also stated that medical certificate was also being enclosed. It is also mentioned in the application that his mother was terminally ill. The Applicant also assured the first Respondent that being a disciplined member of the staff, he would carry out all the orders as and when those were received. On 17.09.1999, a memorandum of charge was served on the Applicant disclosing the intention to proceed against him under Rule 14 of the CCS (CCA) Rules, 1965.
The following two Articles of Charge were served on the Applicant:
Article of charge I To strengthen the administrative set up of Regional Centres some officials were transferred during February, 1999 from CAPART H.Q. to Regional Committees, set up in various regions outside Delhi. Inter alia Shri Lalit Kumar, Sr. Accountant was also transferred to RC, Guwahati from CAPART H.Qs vide office order no.2-16/98-AED dated 18-2-98. Later on it was intimated that Shri Lalit Kumar has not reported for duty there. This resulted in dis-location of accounts work at the Regional Committee. A show cause notice was issued to Shri Lalit Kumar asking him to explain as to why he did not comply with the orders of CAPART. Shri Lalit Kumar neither gave any satisfactory reply nor joined duty at Guwahati. He has thus dis-obeyed the written orders of the competent authority.
By his said act he has shown lack of devotion to duty and exhibited behaviour unbecoming of CAPARTs employee and thereby contravened provision of CCS conduct Rules, 1964 (as extended to CAPART employees).
Article of charge II To stall his transfer, Shri Lalit Kumar tried to bring political pressure on CAPART. He had met the Honble Minister on 25-2-99 as his residence and requested for cancellation of his transfer orders. The Honble Minister did not entertain his request. He expressed his concern regarding the meeting of an official to bring undue pressure for the cancellation of orders of the transfer. Ministers office informed CAPART and conveyed his displeasure about the action of Shri Lalit Kumar in approaching the Minister of State.
4. The Applicant gave a reply on 30.09.1999 in which, inter alia, it was mentioned that the first Respondent had adopted an authoritarian attitude in his case instead of appreciating his difficulties. He also stated that [I]n my case I feel that at the present juncture looking after my family is more important. He stated further that he was not in a position to leave his parents alone. He further stated in reply to the second Article of Charge that he met the Minister of State due to ignorance of Rules. However, he added further that the Minister of State was the Chairman of the Executive Committee of CAPART and meeting him could not be considered as bringing in political pressure. He would state that this could not be considered violation of Rule 20 of CCS (Conduct) Rules, 1964. An enquiry was held in this matter. The enquiry officer in his report dated 26.04.2000, inter alia, observed thus in respect of the first Article of Charge:
It was in his application dated 5-7-99 only (Exht. PW 2F) in response to the show cause notice that he mentioned about the illness of his parents and their critical condition and enclosed a medical certificate (what medical certificate was submitted by him to CAPART is not known because it has not been submitted before me either by CAPART or by the charged officer). The copies of the medical certificates submitted by him before me along with his written brief, relate to the period May, 86, March, 90, and March and April, 2000. The March, 90 document is a certificate from the Dr. of Ram Manohar Lohiya Hospital that his father is a case of hypertension and was under his treatment. As no medical document has been produced/submitted from March, 90 till March, 2000, it can be safely presumed that there was no serious problem with his father. Nothing has been submitted in support of the illness of his mother and grandmother and therefore I presume there was no serious problem with them. There is nothing on record to show that from February, 99, when the charged officer was transferred to Guwahati, till March, 2000, there was any serious problem with his father also because it is only on 27th March, 2000 that his father was admitted in the hospital for the first time and that too for one day only as he was discharged on 28-3-2000. After this he seems to have taken some treatment at Escorts Heart Institute as would appear from the letter dated 3-4-2000 of the Director General, Health Services. The specific nature of the treatment i.e. whether it was angiography or angioplasty or bypass heart surgery is not at all known and the charged officer did not think it necessary for reasons best known to him to produce the relevant documents in this connection. As discussed above in the last one year after the issue of the transfer order, there was no serious illness in the family which could have prevented him from joining his duty at Guwahati, and therefore I do not find any valid reason for the charged officer not joining his duty at Guhawati. There is not even an iota of evidence to show that there existed any unavoidable circumstances as alleged by the charged officer which prevented him from joining his duty at Guwahati. (emphasis ours)
5. The disciplinary enquiry culminated in a warning issued vide memorandum dated 12.01.2001. Another memorandum dated 9/15.01.2002 was issued informing the Applicant that it was proposed to hold an enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965 (as extended to CAPART employees). Six Articles of Charge as reproduced below were served on the Applicant:
Article 1. That vide office order No.2-16/98-AED dated 18.02.1999 Shri Lalit Kumar was transferred to Regional Committee, Guwahati from CAPART Headquarters and was relieved from CAPART Headquarters on 05.03.1999 (AN) with instructions to join duty at Regional Centre, Guwahati immediately. As per records Shri Lalit Kumar has not yet complied with the said orders. Thus he has disobeyed the written and lawful orders of the Competent Authority.
The above Act of Shri Lalit Kumar tantamounts to misconduct and is violative of Rule 3 (i & iv) of the Conduct Discipline and Appeal, 1964 as adopted by CAPART.
Article 2. He is absent from duties since 05.03.1999 without intimation and prior sanction of leave by the Competent authority. By this said act he has shown lack of devotion to duty and exhibited behavior unbecoming of CAPARTs employee and thereby contravened provision of Rule 3(v) of the CCC Conduct Discipline and Appeal, 1964 (as extended to CAPART Employees).
Article 3. That inspite of the written instructions of the Competent Authority, Shri Lalit Kumar has neither reported to duties at RC, Guwahati nor sent any intimation to this regard. By this said act he has shown willful disobedience to duty and exhibited behavior unbecoming of CAPARTs employee and thereby contravened provision of Rule 3(viii) the CCS Conduct Discipline and Appeal, 1964 (as extended to CAPART Employees).
Article 4. Inspite of his assurance dated 5th July, 1999 to carry out all the orders of the Competent Authority Shri Lalit Kumar has failed to report for duty till date. This action of Shri Lalit Kumar is an act of willful disobedience of the lawful orders of the Competent Authority and his misconduct under Rule 3 (ix) of the Conduct Disciplinary Appeal Rules, 1964, as extended to CAPART employees.
Article 5. That inspite of the repeated opportunities given to Shri Lalit Kumar he has failed to comply with the lawful orders of the Competent Authority due to persons reasons. This act of Shri Lalit Kumar is an act of willful disobedience of the lawful orders of the Competent Authority and is misconduct under Rule 3 (iii) of the Conduct Discipline Appeal Rules, 1964, as extended to CAPART employees.
Article 6. Subsequently an inquiry was held and the Inquiry Officer vide his inquiry report dated 26th April, 2000 viewed that Shri Lalit Kumar has failed to comply with the lawful orders of the Competent Authority without any satisfactory reasons and held the official guilty, which further proves that Shri Lalit Kumar is a habitual defaulter and this act of Shri Lalit Kumar is a saw misconduct under Rule 3 (viii & ix) of the Conduct Discipline Appeal Rules, 1964, as extended to CAPART employees. The Applicant gave a reply on 1.02.2002, the relevant part of which is extracted below :
I invite a reference to your Memorandum No. referred to above and wish to bring your attention to the charges brought out in your memorandum No.14(69)/99-AED dated 17/9/1999. An inquiry was held and the Inquiry Officer submitted his report in June 2000. I gave my remarks against the findings in June 2000 CAPART sent a communication to me on 12/01/2001 i.e. seven months after my submission indicating that my action of meeting the Minister violates Rule 20 of CCS (Conduct Rules) 1964 as extended to CAPART employees and I was warned not to repeat such action in future. I may mention here that charges levelled then includes the charges levelled now i.e. not reporting for duty at Guwahati and bringing political pressure etc. After the inquiry was over a communication was sent to me as mentioned earlier dealing with bringing political pressure only i.e. nothing was mentioned about not reporting for duty at Guwahati. After one year another Memorandum has now been issued regarding the same charge and an Inquiry is proposed to be conducted again and I have been asked to submit my defence and also to state whether I desire to be heard in person. In this regard I may state that I am still not in a position to move out of Delhi in view of my family position after demise of my father in May 2000. In such circumstances I am not in a position to carry out the transfer order despite my intention to do so. (emphasis ours)
6. An enquiry was held in the matter. The Applicant submitted a brief note in reply to the note of the Presenting Officer in which he again indicated that [I] may mention again herein that my position is so delicate that I am not in a position to obey DGs order and therefore has to stay in Delhi. He also pointed out that five officers named in this note had requested for cancellation of their transfer out of Delhi, which had been acceded to. The enquiry officer in his report dated 8.07.2002 held all charges to be proved. The disciplinary authority thereafter by her order dated 5.02.2003 imposed a penalty of dismissal on the Applicant. The Applicant thereafter preferred an appeal to the appellate authority by his representation dated 30.07.2003. Half of the appeal is against the order dated 12.01.2001 by which warning was communicated to the Applicant. Thereafter the Applicant has contended that the second chargesheet has been issued on the same charges as the first memorandum of charge and it violated Article 20 (2) of the Constitution of India mandating that a person would not be punished for the same offence twice. Several other contentions were also raised. The appellate authority by order dated 9.03.2005 rejected the appeal by observing thus:
The Appellate Authority, having gone through the submissions made in the appeal with reference to the relevant inquiry report of the Inquiry Officer and other records and documents available on the file, has noted that the charges of misconduct and misbehaviour against Shri Lalit Kumar which led to his dismissal from service stand fully proved. The Appellate Authority also notices that a proper opportunity was given to Shri Lalit Kumar during inquiry proceedings before the Inquiry Officer. It was only after proper considerations on the evidence on record and on submissions of parties, that the Inquiry Officer, arrived at the finding that Shri Lalit Kumar had misconducted himself pursuant to which his dismissal from the service was ordered. It is also pertinent that the delinquent had held a post of Senior Accountant, which requires its discharge with integrity and diligence. As such, upon being found guilty there is no fresh ground in the appeal of delinquent which needs to be considered for reversal of dismissal order. The Appellate Authority, therefore, does not find any justifiable reason or merit for interfering with the order of dismissal passed by the Disciplinary Authority against Shri Lalit Kumar, ex-Senior Accountant, CAPART. That is how the Applicant is before us.
7. Learned counsel for the Applicant has urged the following contentions in his submissions before us:
the Respondents have not considered the family problems of the Applicant and that the illness of his parents was an open secret in the institution;
the Applicant has been subjected to serious discrimination by the Respondents in as much as five other employees transferred from the headquarters to different Regional Centres were either not relieved or their orders of transfer were cancelled;
the Respondents have not considered the difficulties of the Applicant sympathetically and refused such consideration without any cogent reasons;
the Respondents have conducted two enquiries on the same set of facts and circumstances, which is against all norms of administrative propriety. The Respondents had already held an enquiry and closed the case by communicating warning to the Applicant;
after the transfer of the Applicant, an outsider had been appointed in his place on ad hoc basis for two years, which shows the malafide intention of the Respondents; and the punishment meted out to the Applicant is disproportionate in the facts and circumstances of his case.
8. Per contra, the learned counsel for the Respondents has contested the cause of the Applicant. He would contend that it is not in dispute that the Applicant has not joined duty at the Regional Centre, Guwahati in compliance of the transfer order dated 18.02.1999. He would contend that the enquiry officer in the first enquiry held against the Applicant had clearly stated that the Applicant had failed to satisfy him that he could not move out of Delhi because of medical problems of his parents and grandmother. It has clearly been stated that the only medical certificate produced was regarding his father suffering from high blood pressure. The other certificate produced was that he had been taken to Escorts Heart Institute. However, the specific nature of the treatment was not given. He would contend that the Applicant did not consider it necessary, for reasons best known to him, to produce the relevant documents regarding illness of his parents and grandmother. The learned counsel would contend that there has been no discrimination against the Applicant by modifying or canceling transfer orders of some other officers. The learned counsel has taken us to paragraph six of the additional affidavit filed by the respondents in reply to the Applicants rejoinder, which states as follows :
6 That in reply to the additional grounds taken by the petitioner it is denied that there has been any discrimination by the Respondents qua the Petitioner and with regard to the non-compliance/obeying the transfer orders by the officers namely S/Shri A.K.Sharma, Ranjeet Singh, L.J.K. Singh and S.K. Pandey as mentioned in the rejoinder. It is denied that there has been any disobedience of office orders on the part of the official (s) named by the Petitioner. It is also denied that the respondents adopted dual transfer policy.
It is further submitted that the transfer orders in respect of the petitioner is dated 18.02.1999 whereas the petitioner is complaining about the happening which took place after 2-1/2 years i.e. in September, 2001 and being raised by the petitioner in rejoinder dated 23.02.2006 filed in this Court in 2006.
It is also submitted that the officer (s) who have been named by the petitioner in the additional Grounds did not approach the Honble Minister and/or did not act in a manner constituting misconduct. They also did not contravene the provisions of CCS Rules. They approached the Competent Authority with respective representation(s). Their transfer orders were cancelled/modified by the Competent Authority after considering their representations.
9. It is further argued that the Applicant never submitted full facts regarding his problem relating to the illness of his parents and his grandmother. He only stated that he was not in a position to move out of Delhi because of his personal problems. The learned counsel would also repel the argument that the second enquiry is same as the first enquiry. He would contend that a mere reading of the Articles of Charge in the second enquiry would make it very clear that both are different enquiries.
10. We have heard the learned counsel for both parties and perused the record placed before us with their assistance.
11. It is not in dispute that the Applicant never complied with the order dated 18.02.1999 transferring him to Regional Centre, Guwahati. From the record placed before us, it is very clear that the Applicant has never submitted any medical certificate regarding the serious illness of his parents and his grandmother. We had pointedly and repeatedly asked the learned counsel for the Applicant as to why no medical certificate has been placed on record regarding the illness of his relatives. The only feeble reply was that the Applicants parents and grandmother were being treated in CGHS Dispensaries, who do not issue medical certificates. We cannot accept this argument. It is not correct to state that CGHS doctors do not issue medical certificates. The enquiry officer in his first enquiry report has elaborated in detail why he did not accept the Applicants plea about his relatives illness. In fact the Applicant has nowhere in any of his communications addressed to the Respondents mentioned the nature of illness of his aforementioned relatives. In so far as the argument that the Applicant has been subjected to the second enquiry on the same charges and facts as in the first enquiry, we agree with the Respondents that even a reading of the Articles of Charge would clearly show that the scope of the enquiry is different. The Applicant did not join at Guwahati even after warning was communicated to him in the first enquiry. The Applicant has not challenged the procedure adopted in the enquiry. He has, in fact, fully participated in the process of disciplinary proceedings. Even in his reply to the report of the enquiry officer in the second enquiry, he has only mentioned that he was not in a position to move out of Delhi without giving actual circumstances, which may put difficulty for him to do so, except mentioning about the demise of his father two years back. In so far as the argument regarding discriminatory treatment against the Applicant is concerned, we are unable to agree with this also. We have adverted to various representations made by the Applicant for consideration of his transfer. It is easily discernible from those that the Applicant has not even mentioned his problems properly and has never supported his difficulties with proper supporting documents. The Applicant has enclosed copy of a note regarding cancellation of transfer of some of the officers, which is placed at page 121 of the paper book and which is reproduced below:
Shri S.K.Pandey Shri S.K.Pandey, Administrative Officer was transferred from CAPART Headquarters, New Delhi to RC, Jaipur against the post of Member Convenor. Since Shri S.K.Pandey was appointed as Administrative Officer, the post which was sanctioned for Headquarters only, he represented for not posting him out of his cadre and if the authority insists on his transfer to Jaipur, he may be given deputation allowance for working against a ex-cadre post.
The representation of Shri S.K.Pandey was considered by the DG and his transfer to RC, Jaipur in the ex-cadre post was cancelled.
Shri A.K.Sharma, Research Assistant Shri A.K.Sharma, Research Assistant was transferred from CAPART Headquarters to RC, Ahmedabad in September, 2001. He, however, represented that his wife is working as a teacher in Bahadurgarh (Haryana) which is close to Delhi, she was also suffering from acute survical and spondylitis pain and as such his presence in Delhi is very much required to attend to the family problems.
Keeping in view the problems of Shri A.K.Sharma and rule position about posting of husband wife (if working) in the same state/place or at atleast nearly so that their family life is not disturbed, the Competent Authority decided to retain Shri A.K. Sharma in CAPART Headquarters, New Delhi. Shri A.K. Sharma was, however, transferred to RC, Chandigarh.
Shri L.J.K.Singh, Research Assistant Shri L.J.K.Singh, Research Assistant was transferred to RC, Guwahati in September, 2001. He requested for deferring his transfer as his wife was not keeping good health and there was nobody to look after his minor children and to attend to his wife in Delhi. The authority agreed to his request to defer his transfer. He was later transferred to RC, Ahmedabad.
Shri Ranjit Singh, UDC Shri Ranjit Singh, UDC, who was transferred to RC, Ahmedabad represented for his retention at Headquarters that his father was undergoing treatment for mental illness in Ram Manohar Lohia Hospital. His request was agreed to by the Competent Authority on humanitarian grounds and his transfer was cancelled.
12. The transfers have been cancelled on rational grounds. Even at the cost of repetition, we may mention that the Applicant never submitted proper application before the competent authority giving details of his problems and medical certificates to support that his parents and grandmother were ill. Under these circumstances, the Respondents seem to be justified in not considering his case for amending the order of his transfer.
13. In so far as the Applicants contention that an outsider has been appointed in his place on ad hoc basis for two years is concerned, he has not produced any document to support this. Moreover, the Respondents reply to this ground is that the Applicant was transferred to the Regional Centre, Guwahati in order to strengthen the administrative set up there. The competent authority is well within its rights to transfer an employee to any place on administrative grounds.
14. The Applicant was transferred in 1999 and till the time of his dismissal in February, 2003, he did not join at the place of his posting. It is also mentioned in the report of the enquiry officer in the second enquiry that the Applicant failed to report for duty in spite of his assurance dated 5.07.1999 to carry out all the orders of the competent authority. We had asked the learned counsel for the Applicant about this undertaking but no satisfactory reply was forthcoming. The Applicant has also not placed this undertaking on record. From the facts and circumstances, it appears that the Applicants conduct has been willful and deliberate in not complying with the transfer order. We do not think that, in the light of such obdurate behaviour of the Applicant, the punishment of dismissal from service is disproportionately harsh.
15. On the basis of above considerations, we find no merit in the OA, which is dismissed.
(Meera Chhibber) (L.K.Joshi) Member (J) Vice Chairman(A) /dkm/