Central Administrative Tribunal - Kolkata
Gopal Dutta vs M/O Finance on 7 February, 2023
No. O'A. 350/00164/2019 Present -- sf di gk une BENCH ff KOLKATA : Hon'ble Mr. fayesh V. Bhairavia, Judicial Member _ Hon'ble Mr Suchitto Kumar Das, Administrative Member - \ Shri Gopal Dutta, ' S/o Late Sudhir Ranjan Dutta, Working as Head Clerk, _ Aged:about 53 years, _ Residing at Ghoshgachi Para Road, P.O. N.C. Pukur, Barrackpore,. - Kolkata - 122. Lessee Applicanit _ -VERSUS- . l.. The Union of: Latiia," ° Through. Secretary, . Ministry of Finance, 'Department of Economie Affairs, 'Currency and Coinage Section, Government of: India, © North Block, | New Delhi - 110 001. . The Joint Secretary, 'Government of India, Ministry, of-Finance, . Department of Economic Affairs, (Coinage & Currency Division), . ' North Block, 'Nei Delhi - 110 001. 3, The Chairman & Managing Director, India-Government Mint, ° (A unit of Security Printing and Mining Corporation Of India Ltd), 16% Floor, Jawahar vyapar Bhawan, Janpat, . New Delhi ~ 110 001. 4. The General Manager, India Government Mint, A unit of Security Pr 'inting and Mining Coiporation - i Date of order: 07.02.2023 ™ Of India Ltd.)," | Alipore, 9). / _ Kolkata -7 00'053: oe 5. The Secretary, Government of India, Ministry of Personnel, Public Grievance & 'Pensions _ (Department of Personnel & Training), . -34 Floor, Lok Nayak Bhavan; Khan Market, -, New Dethi ~ 110 003... 6. The Dy. Manager (HR), India Government Mint, (A unit of Security, Printing and Mining Corporation . Of India Ltd.), Alipore, Kolkata -- 700 053. biedba eens Respondents ; 'For the Applicant . ; Mr. S.K. Dutta, Counsel ; Mr. T. Das, Counsel Mr. B. Roy,'Counsel ' For the Respondents: .: . Mr. H.K. Das, Counsel ~ Perret sgennistra the r Freunde Mr. A.N. Bhattacharyya, Counsel ORDER
SS Jayesh V. Bhairavia, Judicial Member: - .
The applicant has filed this O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking the following main reliefs:-' on An order do issue directing the respondents to rescind/recall the Minor Penalty Order dated 20.8.2014 by withdrawing the punishment imposed on the applicant ie. "postponing of 01 (one) increment with cumulative - _ effect after completion of earlier penalty if any" "and pay the consequential ; all the benefits. a . -
An Order do issue quashing and / or setting aside the Impugned Appellate . Order dated 16.2.2018.
__ benefits to the applicant.
An Oriler do issue directing the respondents to transmit-all the records relating to this case along with all the documents before the Hon'ble administered.
'An order do issue directing the respondents to grant all consequential ~ ' Tribunal so that on perusal of the same the conscionable justice may be -- 1 (v.) <A cost may be imposed.on the guthority concern for mental and financial harassment on the petitioner.
(vi) Any other appropriate order or orders sale direction as your Lordships may deem fit and proper."
2. Brief facts of this case are as under:-
2.1. The applicant while working as Head Clerk with India Government Mint, Kolkata, a disciplinary proceeding was instituied against him while charge-
memorandum dated 04.03.2013 under Rule 14 of CCS (CCA) Rules, 1965. Along with the said Charge Memorandum, the applicant was served with Statement of Article of Charges framed against him, Statement of Imputation of Misconduct in _ support of Article of.Charges, List of documents and List of Witnessés and was directed to submit his written statement of his defence and also to state whether | he desires to be heard in person (Annexure A/4 refer). 2.2. .The Article of Charges levelled: against the applicant to the effect that | while he was working as Head Clerk, he remained unauthorized absent for the period from 12.12.2012 to 14.1,2013. He is also in nature of remaining absent frequently without prior permission of the authority. The applicant was also charged for making misleading and false statement in respect to his letter dated 14.12.2012 received in the office on 16.1.2013 and his representation dated 22.1.2013 in response to.one memorandum dated 17.1.2013 issued to him seeking explanation for his unauthorized absence etc. 2.3. On receipt of the aforesaid charge memorandum dated 4.3.2013, he submitted his written statement/ representation and had denied the charges | levelled against him. The Disciplinary Authority initiated departmental inquiry ' in respect to said charge memorandum. The applicant herein had participated in pn the said inquiry.
4 2.4. ..On conclusion of 'the inquiry -the lriquiry Officer had submitted his report dated 4.7.2014 (Annexure A/8 collectively): wherein' following conclusion has . 'been recorded' by the Inquiry authority which reads as under:-
"Conchisions: ~ After having conducted Inquiry: of C.O. in light of charges mentioned in the | . Memorandutm of charges issued by General Manager to Charged Official, (CO), | his Defense Assistance, verifying the documents and related papers and
- examination of witness the following can be concluded:
"(a) The charge of gross misconduct from the duty for the period from 12.12.2012 to 14.1.2013 unauthorisedly is not proved because the CO had justified reasons to avail of leave under the nuiltiple ailments as substantiated in his reply including the availability of inland letter giving information and by medical certificate submitted , by him. However, the second part of the charge under Article I 1.e. he is in nature of remaining absent frequently without prior permission 'of the competent authority is proved from his leave records and-
statement of witness which indicates that his attitude i is very casual while availing leave. ,
(b) On each and every occasion he avails leave first and submitted application on resuming duty. Though the CO has given the reason of his sickness for taking the leave but not informing every time indicates an irresponsible behaviour which leads to draw an interference that he is in the habit of remaining absent at his will under the guise of sickness. '
(c) The 'Charge under Article If is an elaboration of the - charge mentioned in Article I an allegation on CO for having submitted a 'misleading and i false statement is not proved. ' \
(d) The Charge mentioned in. Article III a new one but only on "explanation of the word "absconding" which is not proved." 2.5. The copy of the report of inquiry dated 14.7.2014 was supplied to the applicant. He submitted his representation dated 22.7.2014 and requested the "Authority t to exonerate him from: the charges in light of finding recorded in the inquiry report. In his -representation -he reiterated that he was suffering from = hypertension, cervical spondylitis.
26. - Thereafter, the' Disciplinary' Authority vide impugned order dated 208.3014, while agreeing with the finding of the Inquiry Officer that "the charge 2 Of remaining frequently absent 'from. duty without prior intimation to the . qt wi. , , 5 O | -
competent authority" held that to that effect the charge is proved against the applicant.
Further, the Disciplinary Authority had accepted that. the remaining charges are not proved.
Accordingly, the Disciplinary Authority vide impugned order dated . 20.8.2014 (Annexure A/10) had awarded a minor penalty under Rule 11 of the CCS (CCA) Rules for "postponing of 01 (one) increment with cumulative effect after completion of earlier penalty, if any."
2.7. "Being aggrieved with the minor penalty order dated 20.8.2014, the applicant had filed statutory appeal before the Appellate Authority. After considering the material on record as well the submission of the applicant in the said appeal, the Appellate Authority vide impugned order dated 16.2.2018 (Annexure A/ 13).rejected the prayer of the applicant/CO by holding that the appellant has exhibited lack of devotion to duty and acted in a manner unbecoming of a Government servant. His behaviour constituted an act of
- misconduct under CCS (CCA) Rules and the penalty imposed by the DA is upheld.
2.8. Being agerieved with-the order passed by the Disciplinary Authority dated 20.8.2014 & order dated 16.2.2018 passed by the Appellate Authority the ; applicant has filed the present O.A. seeking the aforesaid relief.
3. Ld. Counsel for the applicant mainly submitted that minor penalty imposed on the applicant based on other matters beside the allegation levelled on him for alleged unauthorized absence for the period from 12.12.2012 to 14.1.2013 and the same cannot' be sustained. The charges levelled against the applicant in Charge Memorandum dated 4.2.2013 for which departmental gh . inquizy was held against him. but a as per the report of the: Inquiry Officer cer the | charges were not proved. However, the DA based on details of other cases held the applicant guilty of misconduét and awarded niinor penalty: and - the said -- penalty order has also been upheld by 1 the Appellate Authority, 'which is ) required to be juashed and set aside. _ a : La. Counsel for the applicant would argue 'that while the applicant :
'remained on medical leave, he had intimated the authority concerned about the same aver phone or through inland | letter and after joining his duty, he submitted his leave application which. was subsequently sanctioned by the ' authority concerned. By referring' to the statement of the leave availed and . submission of his application (Annexure A/ 14 collectively) the Ld: Counsel would submit that on each and every occasion the leave of the applicant was ; duly sanctioned by the authorities. Therefore, the finding recorded in the inguity report as well by the Disciplinary Authority that the charge levelled against the applicant. that the remained absent frequently without prior permission of the my competent authority has wrongly been held to be proved, 4.1. Ld. Counsel for the applicant, further submits that the chargesheet dated as 3.2013 has been issued by an incompetent authority. He submits that initially the Deputy General Manager iad issued Memorandum dated 9.1.2013whereby the epplicant was intimated that he has not reported to duty from 12.12.2012 and he is absconding till date. Therefore, he was directed to report for duty immediately, failing which disciplinary action will be initiated against him.
"Thereafter, vide letter dated 171.2013 issued by the Dy. General Manager whereby explanation was sought from the applicant in respect' to his frequent absence from duty without prior permission of the competent authority as well
- for 'not informing the reason of such frequent absence had also sought for 'afl 7 'explanation for remaining unauthorizedly absent from duty from 12.12.2012 to 14.1.2013 and the reasons for such absence. In response to the same, the applicant - "had submitted his detailed explanation. However, the applicant was served with chargé memorandum under Rule 9 of CCS (CCA) Rules signed by. the General Manager. According to the Ld. Counsel for the applicant, in case of the applicant, who is working as Head Clerk, his Disciplinary Authority should be the Dy. General Manager and not the General Manager. Therefore, the
- chargesheet ought not to have been issued by the General Manager.
5. Per contra, the respondents have filed their reply and denied the claim of the applicant. Ld. Counsel for the respondents submits that the applicant herein participated in. the departmental inquiry instituted against him 'under the provisions of CCS (CCA) Rules and had submitted his defence brief. Considering the material on record, the Inquiry Authority had recorded its finding that charge for his unauthorized absence for the period 12.12.2012 to 14.1.2013. was not proved. However, at the same time, the inquiry authority in respect to the ~/ charge levelled against the applicant that "he is.also in the nature of remaining . absent frequently without. prior permission of the competent authority" had recorded his finding that the same is proved. By agreeing with the said finding, the DA has awarded only minor penalty and the Appellate Authority has upheld - the said order. Therefore, by following the principle of natural justice and based on the evidence the competent authority awarded the penalty upon the applicant which is just and proper. According to the Ld. Counsel, as per the Security, Printing & Minting Corporation of India Ltd. (SPMCIL) Conduct, Discipline & Appeal Rules, 2020 the General Manager who is the: competent authority for surplus employees, is empowered to take disciplinary action and impose penalty
-against the applicant herein. Being agerieved with the penalty order passed by a eo, v if | © the General: Manager, the applicant herein had submitted his appeal before the prescribed Appellate Authority under the Rules. Therefore, the applicant is not "entitled for any relief as sought for in this O.A.
6. The applicant has filed-rejoinder and reiterated the submission made in the O.A. It is stated that from the leave statement it has been proved that the . applicant submitted his -leave application after resuming his duty and | subsequently it has been sanctioned by the authority concerned. The charge of unauthorized absence has not been proved during the inquiry proceeding and same has been agreed to by the Disciplinary Authority. It is stated that only for the cause of habitual absenteeism, the applicant has been imposed minor punishment. In fact, the leave application of the applicant though subsequently submitted by him was sanctioned, under the circumstances, the respondents ought not to have imposed minor penalty upon the applicant. Ld. Counsel reiterated that the penalty imposed is unwarranted since respondents have sanctioned the leave of applicant.
7. Heard the Ld. Counsel for the parties and examined the material on- record.
8. In the matter of Disciplinary proceeding instituted against the Government servant, the paramount condition is he should have been given due opportunity to submit his defence by following the principles of natural justice as well the . procedure prescribed in CCS (CCA) Rules as the same is applicable in the present case. Undisputedly, the applicant had participated in departmental 'inquiry and on its conclusion, the Inquiry report was submitted by the Inquiring Officer, copy of the said report was supplied to the applicant and the applicant had submitted his representation to it. The DA while agreeing with the findings of the Inquiry Officer that the charge of unauthorized absence from duty as gf Ch.
levelled against the 'applicant was not proved and had held that he agrees with _ the finding of Inquiry Authority that the charge levelled against the applicant that he is remaining absent frequently without prior permission of the competent authority. Accordingly, he had imposed minor penalty under Rule 11 of the CCS (CCA) Rules. Ld. Counsel for the applicant submits that since his leave application, though submitted at a later stage, was approved, it is not prudent to hold that the applicant has committed any misconduct of remaining absent without prior permission of the authority. In fact, due to various ailments, the applicant for his medical treatment could not submit leave application before proceeding on leave at certain occasion. To appreciate this submission, it is appropriate to refer to SPMCIL (Conduct Discipline & Appeal(CDA) Rules, 2020 wherein in Rule 5 stipulates certain acts of omission and commission to be treated as "misconduct". One of such conduct as stipulated in Rule 5 (7) of the said Rules envisages that " Absence without leave or over-staying the sanctioned ~ leaves for more than four consecutive days without sufficient grounds or proper | or satisfactory explanation."
9, In the present case, as noted hereinabove, the charge levelled against the applicant that he remained absent frequently without prior permission of the competent authority and same has been held to be proved during the departmental inquiry. However, it is not in dispute that in case of the applicant, his each leave application was sanctioned by the competent authority meaning thereby that the explanation as provided by the applicant for remaining absent was accepted. by the competent authority.
10. Under the circumstances, the charge of remaining absent frequently without prior permission does not hold good. As such, no material evidence _ F contrary to the same has been surfaced during the enquiry. Therefore, we are in # 10 agreement with the submission of Ld. Counsel for the applicant that the Disciplinary Authority and the Appellate Authority have erred in imposing penalty upon the applicant.
11. In light of the aforesaid discussion, the impugned order dated 20.8.2014 passed by the Disciplinary Authority and impugned order dated 16.2.2018 passed by the Appellate Authority is quashed and set aside. The respondents are directed to grant all consequential benefit to the applicant. |
12. TheO.A. stands allowed. No costs.
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Ss ; . \ a . . Aa (Suchitto Kumar Das) _ (Jayesh V. Bhairavia) Administrative Member ; Judicial Member SP