Central Administrative Tribunal - Delhi
Shri Navneet Kumar Sharma vs Union Of India on 13 August, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2412/2008 M.A. No.1780/2009 New Delhi this the 13th day of August, 2010 HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) Shri Navneet Kumar Sharma S/o Shri C.M. Sharma Age 40 years R/o Gali No.1, H.No.109/1B, Khandsa Road, Hari Nagar, Gurgaon, Haryana. Applicant By Advocate: Shri Sachin Chauhan. Versus 1. Union of India Through the Cabinet Secretary, Cabinet Secretariat, Bikaner House Annexe, Shahjahan Road, New Delhi-110 011. 2. The Special Secretary (Pers.), Bikaner House Annexe, Shahjahan Road, New Delhi. 3. The Joint Secretary (Pers.) Bikaner House Annexe, Shahjahan Road, New Delhi-110 011. ..Respondents By Advocate: Shri T.C. Gupta. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Applicant has challenged order dated 9.4.2007 (page 19) whereby he has been removed from service on the ground of unauthorized absence and order dated 22.5.2007 (page 21) whereby his appeal has been rejected.
2. It is stated by the applicant that he was charge sheeted on 2.8.2006 on the ground of unauthorized absence. The Inquiry Officers report was not served on the applicant, therefore, without considering his representation, disciplinary authority passed the order of removal against the applicant that is sufficient to quash the order, as principles of natural justice have been violated. Applicant had given a detailed appeal wherein question of disproportionate punishment has been raised on the ground that he had already put in 16 to 17 years of service but this aspect was not considered by the Appellate Authority and his appeal has been rejected without considering the reasons given by him as to why he was absent. He thus prayed that the orders may be quashed and OA may be allowed
3. Respondents on the other hand have opposed this OA. They have stated all the employees working in R&AW are having all India transfer liability. He was transferred to Tejpur where he reported for duties on 26.7.2004 from where he was posted to FIP Bumla on 3.9.2004. He was allowed to appear in Limited Departmental Competitive Examination for FA (GD) for promotion to the grade of SFA (GD) which was held on 25.6.2005, as such he left his duty station on 17.6.2005 but did not report back thereafter. It was reported by the Deputy Commissioner, SB Tezpur, that applicant had not reported back at Bumla for duties after the examination and on earlier occasion also, applicant remained unauthorisedly absent from duty without any intimation for 101 days. His explanation was to be called for as to why official never reported for duties in spite of number of letters written to him calling upon him to report back for duty.
4. On discreet enquiry to know the whereabouts of Shri Navneet Kumar Sharma, the applicant herein, it was informed that he had not furnished correct residential address and he was not residing at the address furnished to the office. It was also learnt that his new residential address was Gali No.1, House No.109/B, Khandsa Road, Hari Nagar, Gurgaon, Haryana and contact No. 9899994837. He had been indulging in private business, namely, property. In view of above, disciplinary proceedings were initiated against the applicant. The charge sheet was duly served on the official on 1.9.2006. In spite of that, he neither reported for duty nor sent any communication. On the contrary, he admitted all the charges vide his letter dated 9.1.2007. They have denied that enquiry was held ex-parte because the official did appear in the enquiry held on 9.1.2007 and had signed the order sheet also. They have thus stated that since the charge has been admitted by the applicant, the authorities have rightly imposed punishment on him. They have thus prayed that the OA may be dismissed.
5. We have heard both the counsel and perused the pleadings as well.
6. Charge against the applicant was as follows:-
That the said Shri Navneet Kumar Sharma, FA (GD) posted at SB Tezpur under SB Shillong, left FIP-Bumla to appear at Limited Departmental Competitive Examination for SFA (GD) to be held at Hqs. On 25.6.2005. He has not reported back for duty till date. So, he has remained on unauthorized absent from duty since then i.e., w.e.f. 25.6.05 to till date.
7. Admittedly, this charge sheet was served on the applicant but he did not give any reply to the charge sheet. It was deemed that he has denied the charge. Accordingly, Inquiry Officer was appointed. Perusal of the order sheet dated 9.1.2007, as annexed by the respondents with the counter affidavit as Annexure R-17, shows applicant was present. He admitted that he had received three memos dated 2.8.2006, 27.11.2006 and 13.12.2006 but due to illness of his father, wife and daughter he could not report for duty at the present place of posting. It was also noted that he is regretful for not joining the duty due to disturbed state of mind caused by the family members but he is wiling to join the duty. This order sheet was duly singed by the applicant, therefore, it can easily be concluded that he was fully aware about the enquiry as such it cannot be stated that he was denied right to defend. The Inquiry Officer gave his report holding the charge proved against the applicant which was duly communicated to the applicant vide memo dated 22.2.2007, as is evident from page 85 Annexure R-20. Even though counsel for the applicant had stated that the applicant had not received copy of the Inquiry Officers report but perusal of his own letter dated 20.3.2007 annexed with the reply as Annexure R-23 at page 91 shows that he had himself written at the top that he had received letter dated 22.2.2007 on 6.3.2007 which was related to his unauthorized absence. In letter dated 22.2.2007 it was clearly mentioned that the copy of the Inquiry Officers report is enclosed. In case applicant had not received copy of the Inquiry Officers report, he would have mentioned so in his letter dated 20.3.2007 but perusal of the letter written by the applicant shows no such objection was taken, therefore, it clearly shows that copy of the enquiry report was served on him. It would be relevant to quote the letter written by the applicant which reads as under:--
8. From above letter, it is absolutely clear that the applicant had admitted the charge of unauthorized absence though he tried to justify it by saying that he could not join duties due to illness of his family members. Even if the family members of the applicant were sick, at best he could have sought permission from the authorities to extend his leave but admittedly, no such evidence was produced by the applicant to show that he had taken permission from the authorities to stay at his house in Delhi. It is also relevant to note that under CCS (Leave) Rules, leave cannot be taken as a matter of right. If a person over stays beyond the leave granted without taking permission from the authorities or without even intimating, it amounts to a misconduct. In the instant case, applicant had admitted that he was unauthorisedly absent, therefore, the charge stood proved against the applicant.
9. Honble Supreme Court has repeatedly held that once the charge is proved then it is for the authorities to decide as to what punishment should be given. Courts should not interfere in the quantum of punishment unless the punishment given is so disproportionate that it shocks the conscience of the court. Unauthorised absence, in fact, has been held to be a serious misconduct by the Honble Supreme Court.
10. At this juncture it would be relevant to refer to the judgment of the Honble Supreme Court in the case of State of Rajasthan & Another Vs. Mohammed Ayub Naz reported JT 2006 (1) SC 162, wherein it was held as under:-
9. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Raj as than inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service.
11. In Govt. of A.P. and Others Vs. Mohd. Taher Ali reported in AIR 2008 SC 375 Honble Supreme Court has held as under:-
In the present case we are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge-sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty. Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement.
12. Similarly in 2009 (13) SCC 102 it was held by Honble Supreme Court in the case of U.O.I. and Others Vs. Bishamber Das Dogra as follows:-
In view of above, it is evident that it is desirable that the delinquent employee may be informed by the disciplinary authority that this past conduct would be taken into consideration while imposing the punishment. But in case of misconduct of grave nature or indiscipline, even in the absent of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the employee for adding the weight to the decision by imposing the punishment if the facts of the case so require.
13. In view of above, since admittedly applicant had absented without giving proper intimation or seeking permission from the competent authority, it amounts to a grave misconduct.
14. Once misconduct was proved and the authorities noted that in spite of the charge sheet having been served on the applicant, enquiry having been held, the applicant had still not joined the duty, it clearly showed that he was not willing to join the duty. We do not find any fault in the decision taken by the authorities. In these circumstances if disciplinary authority was of the view that it calls for a major penalty and applicant was removed from service by deciding the period of unauthorized absence as dies non for all purposes, it calls for no interference. It is relevant to note that the applicant did not even submit any representation against the findings of the Inquiry Officer which was duly received by him as per his own letter as referred to above. Such an attitude definitely cannot be accepted by the authorities. The appellate authority specifically noted that this grave misconduct on the part of the appellant warrants imposition of major penalty and the disciplinary authority has rightly imposed the punishment on the applicant as deemed fit in the given circumstances. It shows that the points raised by the applicant were fully considered, therefore, it cannot be stated that the points raised by the applicant were not considered or the authorities did not pass a reasoned order.
15. It has repeatedly been held by the Honble Supreme Court that if penalty is imposed on the delinquent after holding an enquiry and no irregularity is pointed out in the enquiry, courts should not interfere with the quantum of punishment.
16. At this juncture it would be relevant to refer to the following judgments:-
(i) In AIR 1989 SC 1185 Government of India Vs. Parmananda Honble Supreme Court had held as under:-
A disciplinary proceeding is not a criminal trial. The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which reasonable person would draw from the proved facts of the case. the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty. it is not the function of the High Court exercising its jurisdiction under Art. 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.
....if the order of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved alone would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour established."
..the order of the Tribunal imposing a lesser penalty on the respondent cannot, therefore, be sustained. He was found guilty of the charge framed against him. He was a party to the fraudulent act for self aggrandisement. He prepared bogus documents for withdrawal of salary in the name of Ashok Kumar who was not working in his Division. He has thus proved himself unbecoming and unworthy to hold any post. Any sympathy or charitable view on such officials will not be conducive to keep the streams of administration pure which is so vital for the success of our democracy.
(ii) In B.C. Chaturvedi Vs. U.O.I. & Ors., reported in AIR 1996 SC 484, it was held as under:-
When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the Appellate Authority has coextensive power to reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.
(iii) In Chairman and Managing Director, United Commercial Bank & Ors. vs. P.C. Kakkar reported in 2003 (4) SCC 364, Honble Supreme Court has held as follows:-
It is settled that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court in the sense that it was in defiance of logic or moral standards. In view of Wednesbury principle the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
(iv) In Chairman & Managing Director, V.C.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu reported in 2008 (5) SCC 569 at 570 it was held as under:-
Jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 also cannot, on the basis of sympathy or sentiment, overturn a legal order. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke doctrine of proportionality. If decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when misconduct stands proved.
17. In the instant case since no irregularity has been pointed out in conducting the enquiry, full opportunity was given to the applicant to defend himself and punishment was imposed on proved misconduct, it calls for no interference. The OA is accordingly dismissed. No costs.
(DR. RAMESH CHANDRA PANDA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh