Central Administrative Tribunal - Delhi
Sh. Ranbir Singh vs Union Of India Through on 15 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.2317/2010
Reserved On:05.12.2014
Pronounced On:15.12.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
Sh. Ranbir Singh,
Rank No. 4551, Employed as Nursing Attendant
In Safdarjung Hospital & V.M.M. College,
R/o Village Bharthal, Post Palam,
New Delhi-29. .. Applicant
(By Advocte: Sh. R.K. Shukla)
Versus
1. Union of India through
The Secretary,
Ministry of Health,
Nirman Bhawan,
New Delhi.
2. The Medical Superintendent,
Safdarjung Hospital and V.M.M. College,
New Delhi-29.
3. The Addl. Medical Superintendent,
Safdarjung Hospital and
V.M.M. College,
New Delhi-29.
4. The Chief Administrative Officer,
Safdarjung Hospital and
V.M.M. College,
New Delhi-29. .. Respondents
(By Advocate: Sh. A.K. Singh)
ORDER
G. George Paracken, Member(J) In this Original Application, the Applicant who was working as Nursing Attendant in the Safdarjung Hospital has challenged the Disciplinary Authoritys order dated 07.03.2009 dismissing him from service and the Appellate Authoritys order dated 10.04.2010 rejecting his appeal against the aforesaid order of the Disciplinary Authority.
2. Brief facts: The Applicant was proceeded against under Rule 14 of the CCS (CCA) Rules, 1965 vide Office Memorandum dated 16.04.2004. The charge against him was that he was a habitual absentee and he remained on unauthorized absence for the following period:-
Year No. of days
2000 121
2001 31
2002 36
2003 48.
The charge sheet sent to him at his home address on various dates was returned undelivered on 14.06.2004, 30.06.2004, 01.07.2004, 02.07.2004, 03.07.2004, 05.07.2004, 07.06.2004 and 19.08.2004 with the comments of the Postal Authorities BAR BAR JANE PER BHI PRAPTKARTA GHAR PER NAHI MILTA ATA VAPIS. Thereafter, the notice was published in Hindi News Paper (Punjab Kesari, Delhi) dated 04.11.2004. Then he personally came and received the charge sheet on 10.11.2004 from the Vigilance Section of the Respondents but he did not make any representation against it despite the directions issued to him. Therefore, an Enquiry Officer and a Presenting Officer was appointed to conduct the enquiry vide order dated 07.02.2005. A copy of the same was also sent to the Applicant at his home address on 14.2.2005, 15.02.2005, 16.02.2005, 17.02.2005 and 18.02.2005 by registered post but they were also returned undelivered with the same comments of the postal authorities. He also did not participate in the enquiry. Therefore, the Enquiry Officer proceeded against him ex-parte and submitted his report on 23.01.2006. During the enquiry, the Enquiry Officer considered the listed documents and heard the listed witnesses. The first Prosecution Witness Mrs. Asha Praveen proved the first two listed documents and confirmed the unauthorized absence of the Applicant from 01.08.2003 to 26.08.2003 and then from 02.09.2003 to 21.09.2003; the second Prosecution Witness Dr. M.S. Prasad proved the other two documents and confirmed that the absentee statements were forwarded to the authorities concerned; the third Prosecution Witness, Shri Kamla Mehto proved the three other documents that the show cause notices were issued to the Applicant on 24.09.2003, 18.10.2003 and 18.12.2003 for his unauthorized absence from time to time; the fourth Prosecution Witness Dr. Taneja has proved his signatures dated 24.11.2003 exhibited as SW-4/1 and the fifth Prosecution Witness Dr. S.S. Uppal also proved his signatures on documents exhibited as SW-1/1 and SW-5/2. Based on those statements of witnesses examined by the prosecution during the course of enquiry, the Inquiry Officer, vide his report dated 23.01.2006, held that there was sufficient evidence to prove that the Applicant was a habitual absentee and remained absent for the period shown in SW-2/1 for the year 2003 and in other documents exhibited during the course of enquiry. According to the Enquiry Officer, it has also been proved conclusively that the Applicant has shown lack of devotion to duty. Since the enquiry was proceeded ex-parte, there was no rebuttal to the same.
3. On receipt of the enquiry report, the Disciplinary Authority furnished a copy of the same to the Applicant on 27.03.2006 to enable him to make a representation in the matter. Accordingly, he submitted his representation on 25.04.2006. After considering the aforesaid enquiry report as well as the Applicants representation, the Disciplinary Authority imposed the penalty of dismissal from service upon him vide order dated 20.05.2006. His appeal against the aforesaid order was also dismissed vide order dated 16.04.2007. The Applicant challenged the aforesaid orders before this Tribunal in OA No.1405/2007 and this Tribunal, vide its order dated 21.11.2007, held that the contention of the Applicant was that the show cause notice issued by the Disciplinary Authority proposing a penalty of dismissal showed the pre-determination of his mind and the same was contrary to the law laid down by the Constitution Bench of the Apex Court in Managing Director, ECIL Vs. B. Karunakar and Others 1993 SCC (L&S) 1184. This Tribunal considered the aforesaid submission of the Applicant and held that there was no provision in the rules to propose a penalty against a Government servant. Moreover, the show cause notice issued to him by the Disciplinary Authority stating therein categorical terms that he proposed a penalty of dismissal from service showed his pre-determined mind and it was reflected in the final order passed where the aforesaid punishment was confirmed. This Tribunal has, therefore, found that the order of the Disciplinary Authority was not fair and free from bias or prejudice. For the said reason, the orders of the Disciplinary Authority and the Appellate Authority were quashed and set aside and the Respondents were directed to reinstate the Applicant forthwith and to deal with interregnum period as per law. Thereafter, the Respondents, vide order dated 23.08.2008, set aside the earlier order of dismissal from service and sent a copy of the Enquiry Officers report. Simultaneously, he was placed under deemed suspension with effect from 20.05.2006. He was also given an opportunity to make a representation against the enquiry report. Accordingly, he submitted his representation on 08.09.2008. Later on, vide order dated 05.03.2009, the Respondents revoked the suspension with the stipulation that the period of suspension will be decided at the time of finalization of the disciplinary proceedings. Thereafter, the Respondents issued the impugned Annexure A-1 order dated 07.03.2009 again dismissing him from service and treating the period of suspension as dies-non.
4. The Applicant has challenged the aforesaid order before this Tribunal in this OA and this Tribunal, vide order dated 20.01.2012, dismissed it on the ground that it was an irony that he was making grievance of denial of reasonable opportunities when he himself was to be blamed for not availing many opportunities offered to him at different stages. It was also observed that notices were sent to him at his home address though registered post and speed post but he did not respond to them. The operative part of the said order reads as under:-
6. We have noticed the conduct of the applicant in not receiving the notices sent to him at home address even though they were sent through registered post and speed post. It is an irony that the applicant should be making a grievance of denial of reasonable opportunities when he himself is squarely to blame in not availing himself of the many opportunities offered to him at all stages. Therefore, we do not find any infirmity in taking up the inquiry ex-parte; neither do we accept the contention that there was any infringement of the Rules. If the applicant would refuse to present himself before the IO, it passes comprehension how his statement could be recorded by the IO. The main ingredients of the Rule that the inquiry report should be based on analysis of evidence and finding reached on that basis are satisfied in this case.
6.1 The allegation that the finding in the inquiry report was without any evidence is a bald one. As a matter of fact, the IO took into consideration the evidence which was on record before holding that the charge of habitual absenteeism was proved. It is seen that the applicant himself states in his representation dated 25.04.2006 the following:-
It is respectfully stated that I have received your show cause notice date & No. as stated above. In which I have been found guilty to absent from duty. In this respect I would like to state that due to family problem I was mentally unwell/unfit due to this reason I was unable to complete my responsibility and duty not only with the department but to also with my family.
We hold that there was sufficient evidence to hold that the applicant was guilty of the charge of habitual absenteeism.
7. From the reply of the applicant to the show cause notice dated 23.08.2008 as well as his appeal we find that the applicant was trying to be highly legalistic and technical in his approach. There is not a whisper about why he was absenting himself from duty year after year and why the period of unauthorized absence went as high as 170 days in 2003, and 61 days in three months in 2004. Although there was some mention of mental perturbation in his reply of 25.04.2006, no such ground was taken in the representation dated 23.08.2008 and the appeal. Neither the applicant has come forward with any such excuse in the present O.A., nor filed any documents in support of such contention.
8. As regards the proportionality of the penalty, we find that the applicant had the onerous duty of attending to the patients in the Hospital. We agree with the respondents that a person who himself is a chronic absentee is hardly a fit person to discharge those responsibility. Besides, instead of any improvement, the problem got worsened over years.
9. It is for the respondent authority to decide on the quantum of penalty keeping in view the facts and circumstances of the case. There is no scope for judicial interference unless it is so shocking as to unsettle judicial conscience.
10. The applicant was appointed by the Chief Administrative Officer, a post which has been redesignated as Deputy Director, Administration. The Addl. M.S., a higher authority, has been delegated with the powers of DA by the Medical Superintendent. (Para 4.1 of counter-reply). As such, there was no lack of competence Neither, the applicant had challenged the orders of the DA on this ground at any stage when he received the charge sheet or show cause notice, or in his appeal petition. We do not find any reason to hold that the DA did not have the competence to pass the impugned order.
11. The applicant had taken mostly technical grounds in his representation dated 23.08.2008 to the DA and in his appeal. We have covered all these grounds. No purpose would be served to remit the matter to the respondent authority on this ground alone. It would only result in exercise of an empty formality. As stated earlier the applicant has not raised any substantial issue about the finding that he was guilty of habitual absenteeism. Rather he had admitted the charge in his representation dated 25.04.2006.
12. From all considerations, we do not find any justification to interfere with the impugned orders.
13. The O.A. is, accordingly, dismissed. No costs.
5. Thereafter, Applicant has filed Review Application No.143/2012 against the aforesaid order stating that many of the arguments advanced by him were not considered by this Tribunal. He has specifically submitted that the judgment of the Apex Court in the case Honble Apex Court referred to by him in the cases of Ministry of Finance & Anr. vs. S.B. Ramesh JT 1998 (1) SCC 319, R.P. Bhatt vs. Union of India 1986 (1) SLR 470, Yashpal Singh vs. National Textile Corporation Ltd. 1991 (1) SLR 680 and Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another JT 1999 (2) SC 456 cited by him in support of his case but the same have not been dealt with by this Tribunal while passing the aforesaid order under. Finding that the aforesaid submission made by the learned counsel for the Applicant has merit, the RA was allowed and the OA was restored for fresh hearing. Accordingly, this case has come up for consideration before us today, i.e.05.12.2011.
6. According to the Applicant, the Enquiry Officer has proceeded against him ex-parte even though notices issued to him have not been served on him. He has also stated that the Respondents themselves have admitted that the notices issued to him were returned unserved. Further, he has stated that the Disciplinary Authority having received the report of the enquiry from the Enquiry Officer, issued a show cause notice to him on 27.03.2006 proposing to impose penalty of dismissal from service. He has also submitted that even though he made a representation on 25.04.2006 stating that his absence was due to his illness, the Disciplinary Authority has not considered the same and issued the order dated 20.05.2006 dismissing him from service. The Appellate Authority has not considered the aforesaid submission made by him in the appellate order. Even after this Tribunal had set aside the aforesaid orders and Applicant has made a representation on 08.09.2008, the Applicant was not reinstated in service but he was placed under deemed suspension. He has also stated that no subsistence allowance was paid to him during the course of enquiry till finalization of enquiry but some subsistence allowance was paid to him in the month of November, 2009 without any clarification.
7. According to the Applicant, the impugned order dated 07.03.2009 amounts to invidious discrimination, as earlier also he was imposed with the same penalty of dismissal from service. The Appellate Authority has also mechanically rejected his appeal by a non-speaking order. Therefore, both the aforesaid orders of the Disciplinary Authority as well as the Appellate Authority is violative of provisions contained in CCS (CCA) Rules, 1965. He has also stated that the findings of the Enquiry Officer in his report was perverse as the same was not based on any evidence and no specific finding has been recorded by the enquiry authority on the charge levelled against him. Therefore, the said report is in violation of sub-rule (23) of Rule 14 of the CCS (CCA) Rules, 1965. Again, according to him, he was not given reasonable opportunity to defend his case and sub-rule (18) of Rule 14 of the CCS (CCA) Rules, 1965 has been violated. Further, he has stated the quantum of punishment imposed upon him is very much disproportionate to the gravity of misconduct. 8. He has also submitted that the enquiry was not conducted in accordance with the principles laid down in the case of Managing Director, ECIL Vs. B. Karunakar and Others (supra). According to the said judgment, the Disciplinary Authority ought to have passed an order or imposed penalty on the delinquent servant after considering not only the report of enquiry but also the defence of the delinquent servant. Further, his contention is that the Disciplinary Authority has failed to note the fact that he has rendered 12 years continuous service. He has also alleged that the Respondents have taken extraneous material and substantiated the enquiry report by relying upon them. In this regard he has submitted that the Enquiry Officer has considered his earlier absence period from duty while imposing upon him the major penalty of dismissal from service.
9. The Respondents have filed their reply. They have denied that the Applicant was not aware of the initiation of the proceedings against him as he himself has admitted in the OA filed by him that even though the appellant was informed by the inquiring authority but it was proceeded ex-parte. They have also stated that the enquiry was held in accordance with the prescribed procedure and it was only thereafter, the Disciplinary Authority has passed the order of dismissal from service. The Appellate Authority has also rightly considered the report of the Enquiry Officer, the Disciplinary Authoritys order and the representations made by the Applicant and passed its order was based on them. Therefore, the allegation of the Applicant that the Respondents have passed order in a mechanical way has been denied as wrong.
10. We have heard the learned counsel for the Applicant Shri R.K. Shukla and the learned counsel for the Respondents Shri A.K. Singh. It is seen that earlier this OA was dismissed vide order dated 20.01.2012 after considering the various submissions made on behalf of the Applicant as well as the Respondents. But the Applicant filed Review Application No.143/2012 (supra) in the said order on the ground that many of the arguments advanced by his counsel were not considered by this Tribunal. His specific submission was that the judgments of the Apex Court in the following cases were not considered:-
(i) Ministry of Finance & Anr. vs. S.B. Ramesh JT 1998 (1) SCC 319;
(ii) R.P. Bhatt vs. Union of India 1986 (1) SLR 470;
(iii) Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another JT 1999 (2) SC 456.
11. In the judgment in the case of S.B. Ramesh (supra), the Apex Court has held that the punishment of compulsory retirement imposed upon the Respondent therein was based on no evidence and the enquiry was totally unsatisfactory. However, in our considered view, the aforesaid judgment has no application in this case as the Applicant was given sufficient opportunity to participate in the enquiry but he deliberately did not do so. Even after a Public Notice was issued in the Newspaper, the Applicant did not participate in the enquiry proceedings. The prosecution has also produced sufficient evidence to prove the charges. Therefore, the aforesaid judgment with regard to non-observance of minimum required procedure is not applicable in this case. As regards the judgment in the case of R.P. Bhatt vs. Union of India (supra), the Apex Court held that except where the Appellate Authority disagrees with the findings of the Disciplinary Authority, neither Article 311(2) nor rules of natural justice requires that in every case the Appellate Authority should state in its order its own reasons. In the present case the Appellate Authority has considered the Disciplinary Authoritys order and agreed with the same. Therefore, the contention of the Applicant that the Appellate Authority has passed its order in a mechanical manner has no relevance. For the same reason, the said judgment relied upon by the Applicant is not applicable. Again, in the case of Capt. M. Paul Anthony (supra), the Apex Court has found that the petitioner was not given subsistence allowance during the period of suspension. However, in this case the Applicant himself has admitted that he has been given the some amount during the suspension period. Therefore, his contention that he has not been paid any subsistence allowance is vague.
12. As regards the quantum of punishment is concerned, it is a well settled position that the Courts/Tribunals should not interfere in the administrative decisions unless it is found to be illogical or suffers from procedural impropriety or was shocking the conscience of the Court as held by the Apex Court in Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar 2003 (4) SCC 364, B.C. Chaturvedi Vs. U.O.I. 1995 (6) SCC 749, Rameshwar Prasad Vs. Union of India 2006 (2) SCC 1 and State Bank of Hyderabad and Another Vs. V.P. Kote Rao 2008 (3) SCT 153.
13. Admittedly, the Applicant was working as Nursing Attendant in the Respondent-Safdarjung Hospital. The charge against him was that he was a habitual absentee, that too without any authorization. According to the Article of Charge, he absented himself from the duty without any permission from the competent authority for 121, 31, 36 and 48 days in the years 2000, 2001, 2002 and 2003 respectively. It is well settled that unauthorized absence is a serious misconduct particularly in organizations/departments which are entrusted with essential services. The Applicant has also never bothered to counter the allegations made against him that his absences were unauthorized and habitual. The duty of Nursing Attendant is to look after the patients in the hospital. If the Nursing Attendant himself is absent from duty, we wonder who would be there to look after the patients. His second contention that he was ill also cannot be accepted. When he was working in a hospital, that too in one of the well known hospitals in Delhi with all uptodate facilities, if he had some medical problem, it was for him to get the treatment from the very same hospital. He could not have abandoned his duty without any intimation to the authorities concerned. Such persons should not have any place in the Office/Department, particularly in a Hospital. Further, we have seen that the Applicant has been absenting himself intermittently without any unauthorisation. Such in-disciplined behaviour of the Applicant will only help to dislocate the work in the hospital. Further, we have seen that the Applicant was given sufficient opportunity to defend his case. But he did not bother to participate in the enquiry proceedings. Finally, the Respondents had to issue notice to him through News Papers. Even though he came to his office and collected the Article of Charges, he again in an indisciplined manner, did not cooperate with the enquiry proceedings. Therefore, the Enquiry Officer was forced to proceed against him ex-parte. An official who was given ample opportunity to defend his case but intentionally refuses to avail himself of it cannot turn around and say that the Respondents have proceeded against him in violation of the principles of natural justice. As held by the Apex Court in the case of N.K. Prasada Vs. Government of India and Others 2004 (6) SCC 299, if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The relevant part of the said judgment reads as under:-
24. The principles of natural justice, it is well settled, cannot be put into a straitjacket formula. Its application will depend upon the facts and circumstances of each case. It is also well settled that if a party after having proper notice chose not to appear, he at a later stage cannot be permitted to say that he had not been given a fair opportunity of hearing. The question had been considered by a Bench of this Court in Sohan Lal Gupta v. Asha Devi Gupta of which two of us (V.N. Khare, CJ. and Sinha, J.) are parties wherein upon noticing a large number of decisions it was held: (SCC p. 506, para 29) "29. The principles of natural justice, it is trite, cannot be put in a straitjacket formula. In a given case the party should not only be required to show that he did not have a proper notice resulting in violation of principles of natural justice but also to show that he was seriously prejudiced thereby."
14. We, in the above facts and circumstances of the case, do not find any merit in this case. Accordingly, this OA is again dismissed. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh