Central Administrative Tribunal - Delhi
Suraj Bhan S/O Chander Singh vs Government Of Nct Of Delhi Through on 3 March, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A. NO.2095/2008 This the 3rd day of March, 2009 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Suraj Bhan S/O Chander Singh, Ex-Warder-497, Central Jail No.5, Tihar, Jail road, New Delhi. R/O House No. T-45, Staff Quarters, Tihar Jail, New Delhi. Applicant ( By Shri G. D. Bhandari, Advocate ) Versus 1. Government of NCT of Delhi through Principal Secretary (Home), Home (General) Department, 5th Level, C Wing, Delhi Secretariat, New Delhi-110002. 2. Director General (Prisons), Prisons Headquarter, Near Lajwanti Garden Chowk, Janak Puri, New Delhi-110064. Respondents ( By Shri Vijay Pandita, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Suraj Bhan, the applicant herein, a Warder in Central Jail, Tihar, Delhi, has since been dismissed from service vide order dated 13.11.2006. The appeal against the order aforesaid has also been dismissed by the appellate authority vide orders dated 18.7.2007. These are the two orders challenged in present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. The applicant faced a regular departmental enquiry under rule 14 of the CCS (CCA) Rules, 1965. The misconduct alleged against him was that he remained absent from duties from 12.11.2003 to 19.1.2005 without information and prior approval of the competent authority. The memorandum of charge dated 7.2.2005 annexed with the Application is accompanied by Annexures-I and II, i.e., statement of articles of charge against the applicant, and statement of imputation of misconduct or misbehaviour in support of the articles of charge. In the statement of articles of charge, the only charge that has been enlisted is that while performing his duties, the applicant had absented himself from 12.11.2003 to date without information and prior approval of the competent authority. In Annexure-II statement of imputation of misconduct or misbehaviour, however, while mentioning that the applicant had remained absent from 12.11.2003, it has also been mentioned that memos dated 17.11.2003, 2.12.2003, 5.1.2004, 6.2.2004, 3.3.2004, 31.3.2004 and 8.10.2004 were issued to the applicant, but he neither joined his duties nor informed the concerned Jail. It has further been mentioned that he also absented himself from duty w.e.f. 8.8.2001 to 21.2.2002 (198 days), 9.8.2002 to 30.5.2002 (52 days), 4.6.2002 to 17.6.2002, 24.6.2002 to 13.3.2003 (263 days), 18.3.2003 to 31.3.2003 (14 days), 14.4.2003 to 20.4.2003 (7 days), 29.9.2003 to 3.10.2003 (5 days) and 5.10.2003 to 12.11.2003 (38 days), without prior approval of the competent authority, and that the above period was not yet decided or sanctioned. The enquiry officer vide his report dated 6.9.2006 held the charges against the applicant as proved beyond reasonable doubt.
3. It is significant to mention that even though, the applicant may have admitted that he had not obtained prior sanction and no approval might have also been given, but he has stated that he is a victim of unfortunate circumstances. It is pleaded that his wife died at child-birth; he also lost his second wife within short span of time, and the destiny played its cruel part once again when he lost his son who had just attained adulthood and was his hope and encouragement through the years of misery. The enquiry officer even though, held the charges as proved, clearly mentioned that Apparently, the CO was suffering from depression and was undergoing treatment for some time. However, tragic circumstances reportedly befalling his family in the death of his first and second wives and his grown up son are mitigating factors which would warrant a lenient view. Nonetheless, his prolonged absence from duty without prior intimation to concerned authorities is nothing short of dereliction of duty and unbecoming of a Government servant, hence violative of Rule 3 of CCS (CCA) Rules. In the earlier part of the report, the enquiry officer has mentioned that a copy of UPC receipt dated 8.10.2004 and one with an illegible date was produced by the applicant along with copies of medical/fitness certificates issued by SMO-in-charge, Primary Health Centre, Mehrauli for the period from 12.11.2003 to 3.2.2005. While so observing, the enquiry officer further mentioned that during his cross examination, the applicant admitted that he could not submit supporting medical documents at the time of resuming duty on 4.2.2005 and he was not taken on duty, but was served suspension and transfer orders on 4.2.2005 itself. From the findings of the enquiry officer, what transpires is that even though the applicant may not have submitted supporting medical documents at the time of his resuming duty, but he had sent the relevant documents vide UPC receipt dated 8.10.2004. Of course, the period of absence of the applicant starts earlier, but his ailing condition was from 12.11.2003, i.e., when he absented without intimation to the authorities.
4. Shri Bhandari, learned counsel representing the applicant, in wake of the facts as mentioned above, has raised only one contention for our consideration. It is urged by him that despite the findings of the enquiry officer mentioned above, the disciplinary authority in its order dated 13.11.2006 mentioned thus:
Charged Official in his reply dated 03.10.2006 against Inquiry Report of Inquiry Officer, has accepted his inability to report for duty during the period under reference, due to the various tragedies occurred in respect of his wives and son, are simply afterthought and he is rather giving an alibi for his absence from duty. The other factors regarding his nervous breakdown certificate and intimation given to the deptt. under UPC, were invariably, if submitted in time should be sent to his concerned Supdt. of Jail for their record as already concluded by the Inquiry Officer in his findings. The verification of the genuineness of the facts, purported to have not been conducted by the jail authorities as per Charged Officials submission, are not tenable, as at no stage, I have observed any biased attitude of Jail Authority against the Charged Official as per the records available. While so observing, the disciplinary authority in the concluding portion of its order, however, stated that he agreed with the findings of the enquiry officer. The finding of the disciplinary authority would appear to be contradictory to the one recorded by the enquiry officer. The enquiry officer did not suspect the medical records produced by the applicant showing his ailing condition for the period in question. He only observed that the supporting documents were not submitted at the time of resuming duties on 4.2.2005. Further, when the enquiry officer has accepted the plea of the applicant that he had passed through a miserable time when his two wives and son had died, how the disciplinary authority, we are unable to fathom, observed that the aforesaid plea raised by the applicant was an afterthought. The plea raised by the applicant with regard to death of his two wives and son has been raised from the very beginning of the enquiry. The same cannot be said to be an afterthought. Insofar as, the appellate authority is concerned, it passed only a non-speaking order inasmuch as, nothing referred to in the memorandum of appeal filed by the applicant came to be discussed. Relevant part of the order passed by the appellate authority reads as follows:
I have heard Shri Suraj Bhan, Ex-Warder in person on 22.6.07 and also perused the charge sheet, Inquiry report, orders of disciplinary authority and appeal filed by Shri Suraj Bhan, Ex-Warder. After going through the records of the case I have come to the conclusion that Sh. Suraj Bhan Ex-Warder was a chronic absentee. Penalty of dismissal from service imposed upon Shri Suraj Bhan, Ex-Warder is justified.
5. We are of the considered view that the plea of the applicant that he was prevented by a sufficient cause in remaining absent, has not been considered, even though the findings of the enquiry officer are in tune with the plea raised by the applicant, and so much so, the enquiry officer has clearly mentioned that there did exist mitigating circumstances calling for a lenient view. Despite that, the disciplinary authority without differing with the report of the enquiry officer has held otherwise. The plea of the applicant that he was passing through a miserable time because of death of his two wives and son has been simply ignored by the disciplinary authority describing the same to be an afterthought. The finding with regard to ailing condition of the applicant which appears to have been proved from the report of the enquiry officer, even though the enquiry officer has mentioned that the applicant could have submitted the concerned documents at the time of resuming duties, has also been over turned by the disciplinary authority. If the disciplinary authority was to differ with the report of the enquiry officer, it ought to have given reasons therefor and call for the applicants explanation. In fact, we find from the order passed by the disciplinary authority that even though, it agreed with the report of the enquiry officer, but in the earlier part of the order, it returned findings which are not in tune with the findings recorded by the enquiry officer.
6. In view of the discussion made above, we partly allow this Application. Orders dated 13.11.2006 and 18.7.2007 passed by the disciplinary and appellate authorities are set aside. The matter will be re-considered by the disciplinary authority. If the disciplinary authority may be of the view that the findings of enquiry officer are incorrect, it should prepare a dissenting note and supply copy thereof to the applicant affording him an opportunity to represent thereagainst. If the disciplinary authority may agree with the report of the enquiry officer, then it may consider the quantum of punishment to be imposed upon the applicant. Surely, insofar as non-intimation and non-sanction of leave is concerned, the said charge stands proved. It is also proved that the applicant had remained absent earlier also on number of occasions. In the view of the disciplinary authority, present may still be a case of dismissal, but surely the mitigating circumstances proved on record of the case ought to have been taken care of. While thus looking into the mitigating circumstances, the disciplinary authority may pass a fresh order if it may agree with findings recorded by the enquiry officer, wherein surely, as mentioned above, quantum of punishment shall also be considered.
7. We are of the considered view that the present may not be a case for ordering reinstatement of the applicant at this stage. Even if it is to be held that the charge insofar as, the applicant did not intimate or obtain sanction for his leave and further that he remained absent on earlier occasions only is proved, yet, the applicant would be inflicted with some punishment. Reinstatement of the applicant and its consequential benefits would abide the final event.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/