Central Administrative Tribunal - Delhi
Shri Om Prakash vs Union Of India Through on 6 May, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.333/2012 New Delhi this the 6th day of May, 2013 Honble Shri George Paracken, Member (J) Honble Mr. Shekhar Agarwal, Member (A) Shri Om Prakash S/o Shri Bhawan Lal R/o H.No.518/20, Om Nagar, Khandda Road, Gurgaon. ..Applicant (By Advocate: Shri U. Srivastava). Versus Union of India Through 1. The Secretary, Ministry of Agriculture, Govt. of India, Krishi Bhawan, New Delhi. 2. National Horticulture Board, Through its Managing Director, Ministry of Agriculture, Government of India, Plot No.85, Sector 18, Institutional Area, Gurgaon Haryana. ..Respondents (By Advocate: Shri Satish Kumar). ORDER (ORAL)
Honble Sh. G. George Paracken:
In this Original Application, Applicant has challenged the impugned Annexure-A order dated 25.10.2010 by which the Respondents have imposed upon him the penalty of reducing the pay of the Applicant (Shri Om Prakash) as may be fixed in the revised pay scale of Rs.5200-20200 + GP 1800/- equivalent to the stage of Basic Pay of Rs.2960/- in the pre-revised pay scale of Rs.2550-55-2660-60-3200. The period of his absence from duty w.e.f. 09.12.2008 till the date of his joining was also treated as unauthorized resulting in loss in pay and allowances for the period of absence under proviso to FR 17 (1) and thus a break in service.
2. The brief facts of the case is that the Respondents have initiated disciplinary proceedings against the Applicant under Rule 14 of the CCS (CCA) Rules, 1965 as extended and made applicable to National Horticulture Board (NHB for short) Employees. The charge against him was as under:-
Shri Om Prakash, while is working as Messenger in the Office w.e.f. 30.05.1988 is in habit of remaining absent unauthorizedly. He is absenting himself unauthorizedly from 09.12.2008 to till date.
The details of the aforesaid charge issued to him reads as under:-
i) Sh. Om Prakash, Messenger is absenting from duty unauthorizedly since 09.12.2008. During this period, he did not submit any leave application, a Show Cause Notice dated 03.03.2009 was to him by Speed Post to resume his duty immediately and explain the reason of unauthorized absence from office. Since no reply was received and a reminder was sent on 16.04.2009 which was returned by postal authorities with the remarks that ____________________________________ Another reminder was issued to Sh. Om Prakash on 01.05.2009 by Regd.Post. But he neither submitted any replies for tendered any information.
In this regard a letter was also sent on 31.07.2009 to Incharge Police Station, Om Nagar, Khandsa road, Gurgaon with a copy to Dy.Commissioner, Gurgaon to inform whereabouts of Sh. Om Prakash followed by reminder dated 30.09.2009.
iii) Notice was issued in Hindustan Times (English) and Navbharat times(Hindi) on 30.11.2009 explaining the facts and directing Sh. Om Prakash that he should present himself in this office within 15 days from the publication of this notice alongwith his explanation about his absence otherwise it will be construed that Sh. Om Prakash is absconding and not interested in working in NHB and as per rules his services will be terminated.
3. The Enquiry Officer issued notices to the Applicant through speed post/registered post twice at his given address but they could not be served on him. The postal authorities returned those notices with the remarks on the cover on the mentioned address no such person is living in the name of Om Prakash and the receiver of the letter to whom it is to be served has already been expired/died thus returned. Thereafter, the Respondents issued a public notice on 11.02.2009 in two newspapers, namely, The Hindustan Times and The Navbharat Times. Still the Applicant did not come forward to attend the enquiry proceedings. Finally, the Enquiry Officer held the enquiry ex-parte and submitted his report holding that the aforesaid charge has been proved. The conclusion arrived at by the Enquiry Officer is as under:-
Conclusion and findings against the charges:-
Mainly two points has been emphasized in the details of charges served on the applicant. On the basis of the documentary and oral evidences produced before me and on its conscious assessment the findings and conclusion against the charges are as under: -
Sh. Om Prakash, Messenger is habitual absentee:-
The existing documents produced before me is insufficient to establish that Sh. Om Prakash Messenger is habitual absentee. All the supporting documents submitted along with charge sheet prove the unauthorized absent from 09.12.08. Further in the quarries regarding habitual absentee on 04.05.10 of the PO, the CO has admitted in writing that due to his ailment in the year 2002 he failed to perform his duties appropriately but on that account only it cannot be concluded that he is habitual absentee because in support of the same the presenting officer (PO) had not produced any supporting evidence that he is habitual absentee.
(ii) Sh. Om Prakash has been absenting unauthorizdely from 09.12.08:-
Neither in his written replies dt. 06.04.10 nor during the inquiry proceedings Sh. Om Prakash either verbally or in writing or through any authentic document was able to produce any evidence that regarding his unauthorized absence he had tried to inform the NHB. Except to accept that due to ailment adverse circumstances he was unable to inform the NHB. During the entire inquiry/proceedings he has been requesting pleading not guilty on the pretext that he had been suffering from heart and mental ailment. He has submitted too that he had not received any notice to resume on duty issued from NHB or any letter or notice published in News paper. Though on medical grounds it is available to sanction leave but the CO has never applied for it. Despite that in reply to the quarries of presenting officer Sh. Om Prakash has informed that till December 2009 he himself had not been aware of his whereabouts. Contrary to that, in terms of the certificate dt. 16.02.10 issued from the Doctors of AIIMS it is mentioned that he had been remained under treatment continuously in cardiology OPD under vide its registration No. CV. 20086/03.
Therefore it is a case of willful absent.
Conclusion:-
On the basis of the documents on record, the change leveled by disciplinary authority that Sh. Om Prakash has been absenting unauthorizedly from 09.12.08, is proved.
4. Tentatively agreeing with the aforesaid enquiry report, Disciplinary Authority forwarded a copy of the same to the Applicant to make his representation, if any. He was also informed that, considering the gravity of the charges proved against him, they have proposed to award him the penalty of removal from service. He was given an opportunity to submit his reply, if any, against the proposed penalty. The Applicant in his reply to the Disciplinary Authority dated 13.08.2010 submitted that he has been serving the department to the entire satisfaction of his superior officers and he had an unblemished service record. However, while he was serving in the department, he fell ill as he was suffering from Coronary Artery Disease. Therefore, he was not in a position to report for his duties w.e.f. 09.12.2008. He has also stated that he sent the doctors prescription dated 10.12.2008 to the respondents vide Fax No.0124-2342990. As far as disciplinary proceedings initiated against him is concerned, he submitted while the charge was issued to him on 03.03.2010, Enquiry Officer concluded the proceedings very fast in an arbitrary manner holding that the charges have been proved against him. His main contention was that the notices issued to him was never served upon him. He has also stated that the Enquiry Officer has not considered the reasons why he did not responded to the public notice published in the news papers. Further, he has submitted that it is an admitted fact that he was suffering from heart disease and he had undergone medical treatment for the same in the Cardiology OPD vide Registration No.CV/20086/03. Further, according to him, there were 2 charges against him; one was that he was a habitual absentee and second was that he was on unauthorized absence from 09.12.2008. The Enquiry Officer did not give any findings with regard to the alleged habitual absenteeism but only held the charge that he was absenting unauthorisedly with effect from 09.12.2008 has been proved. Again, while proposing the penalty of removal from service, the Disciplinary Authority did not consider the length of service already put in by him as he was serving the Department from the year 1988 and rendered more than 22 years of satisfactory service.
5. The Disciplinary Authority after due consideration of the aforesaid representation of the Applicant decided to impose upon him a lesser penalty of reduction in his pay as stated earlier. He was also allowed to join service again as Messenger at NHB Hq. Gurgaon.
6. The Applicant did not make any appeal against the aforesaid order of the Disciplinary Authority but challenged it through this Original Application on the ground that it is illegal, unjust, arbitrary, mala fide, violative of the principles of natural justice and Articles 14, 16 and 21 of the Constitution of India. According to him, the Respondents themselves have not held that there was any misconduct on his part. There was no charge of willful unauthorized absence. Further, according to him, he was the victim of adverse circumstances due to his illness which was beyond his control.
7. The learned counsel for the Applicant, Shri U. Srivastava has also argued that the entire disciplinary proceedings initiated against the Applicant was vitiated because the absentee notices sent to him twice by speed post/registered post were admittedly not served upon him. Therefore, the proceedings have been held in violation of the principles of natural justice and the report submitted by the Enquiry Officer is liable to be quashed and set aside. In this regard he has relied upon the judgment of the Apex Court in the case of Union of India and Others Vs. Dinnnath Shantaram Karekar and Others AIR 1998 SC 2722 wherein it has been held as under:-
7. As would appear from the perusal of that decision, the law with regard to "Communication" and not "Actual Service" was laid down in the context of the order by which services were terminated. It was based on a consideration of the earlier decisions in, State of Punjab v. Khemi Ram, AIR 1970 SC 214; Bachhittar Singh v. State of Punjab, 1962 Supp (3) SCR 713 : AIR 1963 SC 395; State of Punjab v. Amr Singh Harika, AIR 1966 SC 1313 and S. Partap Singh v. State of Punjab, (1964) 4 SCR 733 : AIR 1964 SC 72. The following passage was quoted from, S. Pratap Singh's judgment (supra):-
"It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it."
8. He has also submitted that the Applicant is actually a patient of heart ailment and it was detected on 09.12.2008 and from that date he remained under treatment under the competent medical authorities. Subsequently, in the said circumstances, he became frustrated in life and it culminated in his mental disorder. Further, according to him, the Applicant is from a rural place and belongs to a socially backward family. Therefore, he has been taking treatment with ojhas, mulvies, tantrics etc. However, after he has recovered from his illness, he approached the respondents immediately on 06.04.2010 and later joined duty.
9. The further contention of the Applicants counsel is that the enquiry was with regard to two aspects (i) habitual absence and (ii) unauthorized absence from duty w.e.f. 09.12.2008. In the enquiry, the first part of charge of habitual absence was not proved. Only the second part of the charge of unauthorized absence from 09.12.2008 was proved. The Disciplinary Authority has also agreed with the aforesaid findings of the Enquiry Officer. Still the Disciplinary Authority did not consider that aspect and imposed the major penalty of reduction of pay.
10. The Respondents have filed their reply. They have stated that Chapter-III of the Staff Rules sets out the rules for Conduct, Discipline and Appeals. Rule 27 of the Staff Rules provides that employee not to be absent from duty without permission. The relevant Rule 27 of the Staff Rules is as follows:-
27. Employee not to be absent from duty without permission or to be late in attendance:-
An employee shall not absent himself from his duties without having obtained the permission of the competent authority.
An employee who absent himself from duty without leave or overstays his leave shall not ordinarily be entitled to draw a pay & allowance during such absence or overstayal and shall further be liable to such disciplinary measure as the competent authority may impose. Provided, however, that the competent authority may treat such period of absence or overstayal as leave without pay and that period shall be debited against his/her leave account as though it was half pay leave due to him/her. It after obtaining an explanation in writing it is satisfied that the overstayal or absence without leave was due to circumstances beyond the control of the employee. The period, in excess of such leave, will be treated as extraordinary leave.
11. They have further submitted that several times the Applicant was asked to resume his duties but he did not do so. The Applicant was asked to explain as to why he was on unauthorized absence though show cause notice dated 03.03.2009 sent by speed post. As there was no response, he was also given a reminder on 16.04.2009. Both the notices were returned unserved with the remarks of the postal authorities on the mentioned address no such person in the name of Om Prakash resides. Yet another notice was sent to him on 01.05.2009 but again there was no response from him. Further, they have sought information through Dy. Commissioner of Police to know his whereabouts and a copy of the said notice was sent to SHO, Om Nagar, Khandsa Road, Gurgaon on 31.07.2009 within whose jurisdiction he was residing. As the Applicant could not be traced, a public notice was published in The Hindustan Times (English) and Navbharat Times (Hindi). Still the Applicant failed to appear. The Enquiry Officer has, therefore, held the enquiry ex-parte and submitted his report on 15.06.2010 holding that the charge was proved. The Applicant was asked to submit his representation, if any, against it within 15 days but he did not do so. He was also informed about the proposed penalty of removal from service. However, considering his representation, the Disciplinary Authority took a lenient view in the matter and awarded him a lesser punishment of reduction in pay.
12. We have heard the learned counsel for the Applicant, Shri U. Srivastava and the learned counsel for the Respondents, Shri Satish Kumar. As pointed out by learned counsel for the Applicant, Shri U. Srivastava, the charge against the Applicant was in two parts. First part was that he was a habitual absentee. The second part was that he was unauthorisedly absenting from duty from 09.12.2008. According to the Applicant himself, only the second part of the charge was proved during the enquiry. It is seen that the Disciplinary Authority has considered the Applicants representation in this regard. Even though the punishment proposed by the Disciplinary Authority was to impose the extreme punishment of removal from service upon the Applicant, after consideration of his representation, the said proposed punishment was reduced and only a relatively minor penalty of reduction in pay has been imposed upon the Applicant. It is a settled law that as far as the quantum of punishment is concerned, the Disciplinary and Appellate Authorities have the final say in the matter and unless it is shockingly disproportionate to the charge proved in the enquiry proceedings, the Courts and Tribunals have hardly any scope to interfere.
13. We, in the above facts and circumstances of the case, do not find any merit in this OA and it is accordingly dismissed. No order as to costs.
(SHEKHAR AGARWAL) (G.GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh