Central Administrative Tribunal - Delhi
Smt. Meenakshi Garg vs Govt. Of Nct Of Delhi Through Its Chief ... on 17 October, 2010
Central Administrative Tribunal Principal Bench OA No.169/2010 New Delhi this the 17th day of August, 2010. Honble Mr. Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Smt. Meenakshi Garg, W/o Shri Abhay Kumar Garg, 104, Manav Vihar Apartment, Sector-15, Rohini, Delhi-110085. -Applicant (By Advocate Shri R.K. Shukla) -Versus- 1. Govt. of NCT of Delhi through its Chief Secretary, Delhi Secretariat, I.P. Estate, New Delhi. 2. The Principal Secretary (Education), G.N.C.T. of Delhi, Old Secretariat, Delhi-110054. 3. Director of Education, Govt. of NCT of Delhi, Old Secretariat, Delhi-110054. -Respondents O R D E R Mr. Shanker Raju, Member (J):
An Assistant Teacher with Delhi Administration by virtue of this OA has assailed an order passed on 05.02.2009, imposing upon her a major penalty, post enquiry, of reduction to lower scale in the time scale for a period of three years with cumulative effect. Also assailed is an order passed in appeal on 30.10.2009, upholding the order of the disciplinary authority (DA).
2. Applicant while working in the school of respondents at Saraswati Vihar was accorded permission to go abroad, i.e., Dubai (UAE) from 1.5.2005 to 30.6.2005 with a stipulation that the aforesaid period could not be extended and to face proceedings in case of default. After completion of leave applicant applied for extension of leave on account of an accident and some disk problem along with supporting documents, i.e., certificates of the competent medical authority duly countersigned by the Indian High Commission at Dubai but the same was rejected with an opportunity to the applicant to join duties. Failure of the applicant to join resulted in a major penalty proceedings chargesheet issued to her under Rule 14 of the CCS (CCA) Rules, 1965 on 28.12.2006, alleging violation of Rule 25 of the CCS (Leave) rules, 1972 on failure to join duties on non-compliance of the direction of the higher authorities. Applicant, who joined on 16.03.2007, submitted a reply to the memorandum. An enquiry proceeded to hold applicant guilty of the charge by the enquiry report dated 2.11.2007, where the enquiry officer (EO) concluded that the medical certificates submitted by the applicant seem to have been managed. Applicant filed interim reply to the memorandum subjecting to the documents to be served by the DA.
3. The DA holding applicant guilty of the charge and acting against the undertaking dated 29.04.2005 imposed the penalty, which on appeal when affirmed, gives rise to the present OA.
4. Learned counsel of applicant Shri R.K. Shukla assails the orders on the ground that the charge of manipulating the medical record was not a charge in the memorandum, yet proved the same; the main charge has been established by the EO, which is not legally tenable.
5. Learned counsel of applicant states that both the orders passed by the DA as well as appellate authorities are without reasons and without dealing with the contentions of the applicant in his representation and appeal respectively.
6. It is further stated that the medical certificate issued by the duly authorized Doctor and countersigned by the Indian Embassy, which has been established from the testimony of Vice-Principal of School Smt. Mithlesh Sharma, a finding recorded by a non-expert committee, doubting the genuineness of the medical certificate is without jurisdiction. Learned counsel states that the brief of the Presenting Officer (PO) was not served upon him, which is violative of Rule 14 (19) of the Rules and the witnesses were not called in the enquiry. Applicant was also not allowed to submit her written brief as per Rule 14 (16) of the Rules. It is also stated that there has been a violation of Rule 14 (18) of the Rules, whereby circumstances brought against the applicant have not been confronted to her.
7. Learned counsel of applicant states that there is no willful disobedience to the direction of the superior or even absence, as she was incapacitated to come back to India without being declared fit by a valid registered medical practitioner, which has not been found to be false or manipulated and without any proof authenticity of these certificates has been commented upon by the EO without any reasons.
8. On the other hand, learned counsel of respondents would vehemently oppose the contentions. According to Mrs. P.K. Gupta the enquiry was conducted in accordance with the rules and the medical certificates produced were procured. The orders passed by the authorities are speaking and as the applicant has flouted the undertaking on willful absence, the penalty imposed is commensurate with the misconduct.
9. Rejoinder reiterates the pleas taken in the OA.
10. We have carefully considered the rival contentions of the parties and perused the material on record.
11. At the outset, without going into the merits of the legal submissions raised we find that the appellate authority, while acting under Rule 27 of the CCS (CCA) Rules, 1965 when an appeal is preferred against a penalty, is obligated on consideration to ensure that the procedure laid down has been complied with or not or violation of which caused failure of justice. In the instant case the applicant has not only indicated before the DA but also before the appellate authority procedural illegalities of not furnishing the POs brief to the applicant and an opportunity to defence evidence and also non-examination under Rule 14 (18), yet the authorities below have not considered this aspect and rejected the appeal without mandatory compliance. In the matter of appeal the authority has to act as a quasi-judicial authority and is not supposed to dispense with the reasoning and consideration as per the methodology laid down under the rules being creation of that statute. The Apex Court in G. Vallikumari v. Andhra Education Society, (2010) 2 SCC 497 and in Chairman, Disciplinary Authroity, Rani Lakshmii Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney & Others, 2009 (4) SCALE 169, ruled that the appellate authority has to act according to the rules and dispose of the appeal by reasons. By not recording reasons compliance of Rule 27 having not been done, the order passed by the appellate authority cannot be sustained in law.
12. In the result, for the foregoing reasons, leaving other grounds open, OA is partly allowed. Appellate order is set aside. Respondent-appellate authority is directed to deal with all the contentions of the applicant taken in her appeal and pass a speaking order within a period of two months from the date of receipt of a copy of this order. If the applicant is still aggrieved, liberty as per law shall be open to her. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.