Central Administrative Tribunal - Mumbai
P B Padalwar vs Posts on 19 November, 2024
1 OA No.85/2022
Central Administrative Tribunal
Mumbai Bench: Mumbai
OA No.85/2022 (Aurangabad)
MA No.176/2022
MA No.985/2024
Order reserved on: 10.10.2024
Order pronounced on: 19.11.2024
Hon'ble Mr. Justice M.G.Sewlikar, Member (J)
Hon'ble Mr. Shri Krishna, Member (A)
P.B.Padalwar,
S/o Balajirao G.Padalwar,
Aged 29 years,
Postman, Savedi Road Sub Post office,
Ahmednagar-414003,
Resident of: Gat No.181, Plot No.4,
Shrikrushna Nagar,
Near Ayodhya Nagari (Taroda Kh.) Malegaon Road,
Nanded-431605.
....Applicant
(By Advocate: Mr. D.M.Shukl)
Versus
1. Union of India (through Secretary Posts),
Department of Posts,
Dak Bhawan,
New Delhi-110001.
2. Chief Postmaster General,
Maharashtra Circle,
Mumbai-400001.
3. Director Postal Services
Pune Region, Pune-411001.
2 OA No.85/2022
4. Sr. Supdt. of Post Offices,
Ahmednagar Division,
Ahmednagar-414001.
... Respondents
(By Advocate: Mr. N.K.Rajpurohit)
ORDER
By Justice M.G.Sewlikar, Member (J) Challenge in this OA is to order dated 28th June 2019 passed by the Reviewing Authority confirming the order of Appellate Authority and the Disciplinary Authority.
2. Facts in nutshell can be stated thus:
2.1 Applicant is working as a Postman in the Department of Posts. He was appointed as Postman on 20th June, 2012. According to the applicant there is Union rivalry amongst Postman's Union. Applicant joined one Union because of which the Sub Postmaster became hostile towards applicant and started intimidating the applicant.
The applicant, because of this, developed a medical condition called "Fear Psychosis". Because of that the parents of the applicant took him to his native place. He had, therefore, filed the application for leave for three months but because of intimidation of the Sub Postmaster, 3 OA No.85/2022 he withdrew that application and applied for Casual Leave for 16th December, 2013 and 17th December, 2013. The applicant, therefore, was not in a position to join duties because of his medical condition called "Fear Psychosis". The applicant had applied for leave in writing due to depression, paranoid medical condition. The respondents, therefore, initiated enquiry against the applicant by serving charge sheet dated 16th June, 2017 on him alleging that on expiry of leave period, applicant did not attend duty and applied for grant of leave without mentioning period of leave. The applicant was shown to have been unauthorizedly absent from 18th December, 2013 to 17th January, 2017. Applicant contends that after completion of enquiry, he was punished by imposing a penalty of punishment of reduction of pay from Rs.22,400/- to Rs.21,700/- for a period of 37 months with a direction that official will not earn increments during the period of reduction and on expiry of reduction, it will not have the effect of postponing the future increments of his pay. 2.2 The applicant made representation to the Reviewing Authority (DPS Pune). However, the Reviewing Authority 4 OA No.85/2022 enhanced punishment to reduction of pay from Rs.22,400/- (pay scale Rs.5200-20200) pay matrix level-3 to Rs.21,700/- (pay scale Rs.5200-20200) pay matrix level- 3 for a period of 48 months with immediate effect. Reduction will have the effect of postponing of future increments of his pay. The applicant contends that he had regularly intimated the respondents about his absence. He had annexed medical certificate also. He contends that the respondents treated the period from 18th December, 2013 to 17th January, 2017 as dies non. The respondents have also punished the applicant by imposing aforesaid punishment for the same period. He submits that when the applicant regularly informed the respondents about his absence, it cannot be called as unauthorized absence.
3. The respondents filed their reply. They aver that there is an inordinate delay in preferring the OA. The Reviewing Authority passed the order on 28th June, 2019 and the OA was filed on 21st January, 2022. The cause assigned in the application for condonation of delay is not at all a sufficient cause, and therefore, the OA needs to be dismissed on this ground alone.
5 OA No.85/2022
4. They contend that the applicant had availed casual leave on 16th December, 2013 and 17th December, 2013, which was granted by Sub Postmaster, Savedi Road. Thereafter, the applicant remained unauthorizedly absent from duty w.e.f. 18th December, 2013 to 17th January, 2017. The applicant joined the duties on 18th January, 2017. The applicant was instructed to join his duty by letter dated 22nd January, 2014 and 6th February, 2014 but he did not join the duty. He had submitted application for commuted leave with medical certificate dated 17th February 2014 for the period from 23rd December, 2013 to 17th February, 2014. However, the applicant did not mention period of leave in the application dated 20th February, 2014. The applicant was again asked by Sub Postmaster to attend the duties vide letter dated 6th March, 2014. Applicant submitted application for commuted leave on 18th March, 2014 with medical certificate. Thereafter, the applicant failed to attend his duties. The applicant was again asked to join the duties vide letter dated 9th December 2014. Again the applicant applied for leave on 7th January, 2015 with medical certificate issued by Dr. 6 OA No.85/2022 Sitanagare, Mukhed dated 5th January 2015. However, the period of leave applied and unfitness was not mentioned in the certificate. The applicant remained absent from duty without getting the leave sanctioned.
5. A show cause notice dated 23rd August, 2016 was issued to the applicant calling upon him to explain in writing as to why disciplinary action should not be initiated against him for remaining unauthorizedly absent from duty. The applicant tendered his explanation on 12 th September, 2016 mentioning therein that he was absent from duty from 18th December, 2013 due to sickness and will join the duty immediately. Thereafter also, the applicant failed to join the duty till 18th January, 2017. Hence, disciplinary action came to be initiated against him. He was found guilty for unauthorized absence and was accordingly punished as above. The Reviewing Authority enhanced the punishment as indicated above. The respondents admit that the period from 18 th December, 2013 to 17th January, 2017 has been treated as dies non. They averred that during the absentee period as well as during enquiry proceedings, applicant did not give any 7 OA No.85/2022 medical certificate which would prove that he was not suffering from Fear Psychosis. The medical certificate given by private medical practitioner shows that applicant was suffering from minor illness, i.e. fever but he remained unauthorizedly absent for the period from 18th December, 2013 to 17th January, 2017. The applicant had only submitted application for two days casual leave for 16th December, 2013 and 17th December, 2013 mentioning the reason of domestic work. Thereafter, he kept on making applications for extension of leave without mentioning period of leave. In neither of his applications, he has mentioned about his paranoid mental condition. He submits that the picture of paranoid mental health condition was created by the applicant though he was in good health. Respondents admit that the applicant had submitted leave applications for extension of leave but leave was not granted by the leave sanctioning authority. The applicant failed to mention the period of leave required to him in leave applications as per Rule 62, 63 of P&T Vol. III. The Reviewing Authority suo moto reviewed the punishment order. Before Reviewing the order, notice was issued to the applicant in respect of proposed enhancement 8 OA No.85/2022 of punishment. A representation was submitted by the applicant. Thereafter, the aforesaid punishment was enhanced. Respondents have, therefore, prayed for the dismissal of the application.
6. We have heard learned counsel for the applicant and learned counsel for respondents.
7. Learned counsel for applicant submitted that the applicant every time informed the respondents about his illness and had annexed medical certificates also. He contends that in P&T Manual Rule 63 Vol.III, it is stated that whenever an official continues to remain absent from duty, overstays leave without permission and his movements are not known or he fails to reply to official communications, the disciplinary authority may initiate action under Rule 14 of the CCS (CCA) Rules, 1965. He contended that every time, the applicant made an application for extension of leave. Therefore, his movements were known to the respondents and every time he replied to official communications. If the leave sanctioning authority had any doubt about the medical certificate of the applicant, the appropriate authority could 9 OA No.85/2022 have referred the applicant to a Government Medical Officer not below the rank of Civil Surgeon or Staff Surgeon to medically examine him. This procedure was not followed. He contended that the applicant was ill. He had Fear Psychosis and record produced by the respondents clearly shows that the applicant had from time to time informed the respondents about his medical condition. He has placed reliance on the decision of Hon'ble Supreme Court in the case of B.C.Chaturvedi vs. Union of India and others, AIR 1996 SC 484.
8. Learned counsel for the respondents submitted that the applicant applied casual leave for 16th December, 2013 and 17th December, 2013. Thereafter, he filed application for leave along with medical certificate. In one certificate he had mentioned his illness as Jaundice with Malaria. In this application, the applicant did not mention the period of leave, and therefore, his leave was not sanctioned. In another application, the applicant annexed the medical certificate in which illness was mentioned as Enteric fever. He contended that in none of these certificates, it is mentioned that the applicant was suffering from Fear 10 OA No.85/2022 Psychosis. He submitted that the applicant is falsely claiming that he had Fear Psychosis. If he really had Fear Psychosis, he would have produced medical certificate to that effect. According to him, the applicant never made any application for extension of leave. He submitted the application only when the respondents made official correspondence with him. This clearly shows that he was unauthorizedly absent from 18th December, 2013 to 17th January, 2017. The respondents had issued notices to the applicant on 22nd January, 2014, 6th March, 2014, 9th December, 2014 and 23rd August, 2016. According to him, the applicant remained absent without any justifiable cause.
9. We have given thoughtful consideration to the submissions made by the learned counsel for the applicant and learned counsel for the respondents.
10. The charge against the applicant is of unauthorized absence. The charge reads as under:
"Shri P B Padalwar while working as Postman from 20.06.12 at Savediroad SO vide his leave application dated 14.12.13 had applied for grant of two days C.L. on 16.12.13 & 17.12.13. The same was granted by SPM Savediroad SO. On expiry of leave period granted, Shri P B Padalwar did not return to duty on 18.12.13.11 OA No.85/2022
Thereafter Shri P B Padalwar did not attend duties till 18.1.17 and remained unauthorized absent from duty during the period from 18.12.13 to 18.01.17."
11. Thus, this charge shows that the applicant was absent unauthorizedly during the period from 18th December, 2013 to 18th January, 2017. It is alleged that therefore he violated the provisions of Rule 14 of CCS (CCA) Rules, 1965 and thereby failed to maintain the devotion to duty and acted in a manner unbecoming of a Government servant contravening the provision of Rule 3(1) (ii)(iii) of CCS Conduct Rules, 1964.
12. In order to determine whether the absence of the employee working in Postal Department is unauthorized absence, the Postal Department has framed rules. Rule 62 & 63 of Postal Manual Volume III deals with absenteeism without permission.
"62. Absence of officials from duty without proper permission or when on duty in office, they have left the office without proper permission or while in the office, they refused to perform the duties assigned to them is subversive of discipline. In cases of such absence from work, the leave sanctioning authority may order that the days on which work is not performed be treated as dies non, i.e. they will neither count as service nor be construed as break in service. This will be without prejudice to any other action that the competent authorities might take against the persons resorting to such practices.12 OA No.85/2022
63. Whenever an official continues to remain absent from duty, overstays leave without permission and his movements are not known or he fails to reply to official communications, the disciplinary authority may initiate action under Rule 14 of the CCS (CCA) Rules, 1965......."
13. Rule 63 specifically mandates that whenever an official continues to remain absent from duty, overstays leave without permission and his movements are not known or he fails to reply to official communication, the disciplinary authority may initiate action under Rule 14 of CCS (CCA) Rules, 1965. From this provision, it is clear that the charge sheet can be served on the employee of the Postal Department only when he continues to remain absent from duty, overstays leave without permission and his movements are not known or he fails to reply to official communications.
14. In the case at hand, we have to determine whether absence of the applicant was without permission or he has overstayed the leave and his movements were not known.
15. The contention of the applicant is that he kept on informing his superiors about his whereabouts. He had regularly sent application for leave. It is his contention that on 16th and 17th December, 2013, he had proceeded 13 OA No.85/2022 on casual leave which was duly sanctioned. It is his further contention that thereafter he kept on sending the leave application, however, his leave applications were not sanctioned for the reason that medical certificates were not annexed with leave applications. For the purpose of checking the authenticity of the statements made in the OA and during the course of arguments, we deemed it appropriate to call for the original records.
16. On perusal of the original record it is seen that the applicant had proceeded on leave on 16th December, 2013 and 17th December, 2013. It was a Casual Leave which was duly sanctioned. This application was made on 14 th December, 2013 and it was granted on that very day.
17. The record further shows that on 23rd December, 2013, the applicant forwarded an application in which it was stated that he suddenly fell ill and sought extension of leave. This application was received on 23 rd December, 2013. The applicant was informed by letter dated 22 nd January, 2014 by Sub Postmaster, Ahmednagar that his leave application was not granted as he had not annexed medical certificate and he had not got the leave sanctioned 14 OA No.85/2022 in advance. The record further shows that on 6th February, 2014, the Sub Postmaster, Ahmednagar informed the applicant that his leave was not sanctioned and he should report to duty immediately.
18. In response to this letter, the applicant on 20th February, 2014 forwarded the application along with medical certificate for extension of leave. The medical certificate is of 17th February, 2014. The medical certificate shows that the applicant was suffering from jaundice with malaria and he was advised rest from 23rd December, 2013 to 17th February, 2014.
19. The record further shows that on 6th March, 2014, the Sub Postmaster, Ahmednagar informed the applicant that his leave was not granted and he failed to join duty. If he continues to remain absent, disciplinary action will be taken against him. He was, therefore, directed to join the duties immediately otherwise disciplinary action under Rule 62 of P&T Manual Volume III will be taken against him. On 18th March, 2014 applicant again forwarded an application along with medical certificate. This medical certificate is dated 5th March, 2014. The medical certificate 15 OA No.85/2022 shows that applicant was suffering from enteric fever. Again the applicant was informed on 9th December, 2014 that the applicant had remained absent and if he remains absent, action as per P&T Manual will be taken against him. The applicant again forwarded application dated 7th January, 2015 in which he stated that he was ill, and therefore, sought extension of leave. This certificate shows that it was signed by the Medical Officer.
20. The applicant was issued show cause notice vide communication dated 23rd August, 2016. He was intimated that if he did not give the explanation within five days for his absence, disciplinary action will be initiated against him. Applicant informed by letter dated 12th September, 2016 that he was ill since 18th December, 2013 and he would join the duties soon.
21. From this correspondence, it is apparent that the applicant had responded to the notices of the respondents. Every time he had forwarded the application along with medical certificate.
16 OA No.85/2022
22. On 26th September, 2016 the applicant forwarded another letter mentioning therein that he be permitted to join the duties. Along with this application, he has annexed medical certificate. This certificate is dated 20 th September, 2016. In this certificate it is mentioned that the applicant was suffering from "Bilateral consolidation with severe anemia, acute pancreatitis, tuberculomeningitis". This certificate is countersigned by Civil Surgeon of District Hospital, Nanded. The period is mentioned to be from 18th December, 2013 to 21st September, 2016. On 14th October, 2016 he forwarded another communication in which he has mentioned that on 26th September, 2016, he had been to the office of the respondents for joining the duties along with medical certificate but he was asked to go back to his village by oral order. He was also informed that he would be informed about the orders regarding his joining the duties. He requested by this communication that he be permitted to join the duties. By communication dated 25.10.2016, he made the similar request of allowing him to join the duties. Similar request was made by communication dated 19th November, 2016. Again on 30th November, 2016 he made 17 OA No.85/2022 similar request. On 7th December, 2016, Sr. Superintendent of Post Offices, Ahmednagar informed the applicant the following remarks:
"If he desires to attend duty he should have join the duty why he is asking permission"
23. Thereafter on 18th January, 2017, the applicant joined the duties along with the medical certificate mentioning the illness "Viral hepatitis with Acute gastroenteritis with fever". This is also signed by Medical Officer Dr. S.C.G.M.C.Hospital, Vishnupuri Nanded and it is countersigned by Civil Surgeon, District Hospital, Nanded.
24. From this correspondence, it is clear that the applicant kept on informing the respondents about his illness and the respondents kept on asking him to join the duties. This shows that the applicant had informed about his illness and about his whereabouts. Therefore, as per Rule 63 of P&T Manual, the respondents ought not to have issued charge sheet to the applicant because the applicant had kept the respondents informed about his illness and about his whereabouts. The charge sheet could have been served upon the applicant only if he had failed to respond to the communications made by the respondents or his 18 OA No.85/2022 whereabouts were not known to the respondents. From the correspondence mentioned above, it is clear that the whereabouts of the applicant were known to the respondents and he had kept them informed about his illness.
25. Learned counsel for respondents vehemently submitted that the applicant made the correspondence only when the respondents issued notices to him. On his own the applicant did not inform the respondents about his illness. He submitted that the illness of the applicant is not genuine because in the certificates the illness mentioned is jaundice with malaria and thereafter enteric fever. In subsequent certificates illness mentioned was "Bilateral consolidation with severe anemia, acute pancreatitis, tuberculomeningitis" and "Viral hepatitis with Acute gastroenteritis with fever". Whereas in the OA he has mentioned his illness as fear psychosis. This clearly shows that the applicant was absent by giving false reasons. This submission cannot be accepted for the simple reason that the charge against the applicant was that he was unauthorizedly absent from duty. And not that he had 19 OA No.85/2022 produced fake medical certificates. The only aspect that needed to enquire was whether he had remained unauthorizedly absent or he has tendered explanation for his absence. As per Rule 63 of the P&T Manual, the employee can be called to be unauthorizedly absent when he failed to respond to the notices of the respondents and he did not inform him his whereabouts to the respondents. The aforesaid record and the communication made by the applicant clearly shows that he had kept the respondents informed about his illness and about his whereabouts. Therefore, the charge of unauthorized absence cannot be sustained.
26. Learned counsel for respondents placed reliance on the case of State Bank of India vs. K.S.Vishwanath, (2022) 15 SCC 190, wherein it is held as under:
"7.3 xxx xxx xxx
10. In B.C. Chaturvedi v. Union of India [B.C.Chaturvedi v. Union of India, MANU/SC/0118/1996 : (1995) 6 SCC 749 : 1996 SCC (L&S) 80], again a three Judge Bench of this Court has held that power of judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to 20 OA No.85/2022 reappreciate the evidence and to arrive at its own independent findings on the evidence......."
27. In judicial review the Court/Tribunal cannot reappreciate the evidence. However, the evidence can be reappreciated only when the finding recorded by the enquiry officer is perverse. In the case at hand, the enquiry officer did not keep in mind the provisions of Rule 63 of P&T Manual. If the provisions of P&T Manual are considered, it is apparent that the findings of the enquiry officer are perverse. It is pertinent to note that in the communication dated 14th October, 2016, the applicant had specifically mentioned that he had approached the office of the respondents for joining the duties but he was not permitted to do so. His earlier applications also show that he had made request to the respondents for joining the duties. But he was not informed as to whether he was permitted to join the duties or not. Finally on 7 th December, 2016 he was permitted to join the duties. Accordingly, he joined the duties on 18th January, 2017. On the basis of these documents it cannot be said that the applicant was unauthorisedly absent. It is not the case of the respondents that the applicant was feigning illness and 21 OA No.85/2022 he had produced fake medical certificates just to show that he was ill. In these circumstances, the findings have to be levelled as perverse. Therefore, the Tribunal can legitimately interfere in the order of the enquiry officer. Learned counsel for respondents placed reliance on the case of State of Punjab vs. Charanjit Singh, (2003) 8 SCC 458 in which it is held as under:
"5. In The State of Punjab and Ors. v. Bakshish Singh, JT (1998) 7 SC 142 which was relied upon by the courts below in holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularised the order of punishment also becomes bad in law and void ab initio. While deciding Bakshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh v. Harihar Gopal, (1969) SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularising the leave and thereby the effect of punishment is not wiped out. In Maan Singh (supra), it was held that the period of absence when treated as leave without pay, was with a view to regularise the leave and not for condonation of misconduct."
28. Learned counsel for respondents also placed reliance on the case of Bondar Singh & ors. vs. Nihal Singh & ors., 2003 (4) SCC 161. This decision of Hon'ble Supreme Court has no application to the facts of the case at hand. In the case of Bondar Singh (supra) the plaintiffs had filed a suit for declaration of ownership of the land in dispute by 22 OA No.85/2022 adverse possession and for injunction to restrain the defendants from interfering over the suit land. This is not the issue in the case at hand. Therefore, this case cannot have application to the facts of the case at hand.
29. In the case of Krushnakant B. Parmar v. Union of India and Anr., (2012) 3 SCC 178 the Hon'ble Supreme Court has held that mere absenteeism is not a ground for holding the employee guilty. There must be a finding by the enquiry officer that the absence was a wilful absence. Relevant part of the judgment reads as under:
"18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty."23 OA No.85/2022
30. In the case at hand, neither in the charge nor in the report of the enquiry, there is a whisper about the absence of the applicant being wilful. In this regard, the finding of the enquiry officer need to be looked into. The relevant part of the finding of enquiry officer reads as under:
"Another witness PW-3 Shri A H Aadhav, GDS MD Savedi Road SO was examined, in which he stated that Shri P B Padalwar, Postman Savedi Road SO was not present on duty from 01.02.2014 to 28.02.2014 and 01.08.2014 to
31.12.2014 and he worked as outsider substitute postman and received the pay and allowances of the absent period of Shri P B Padalwar, Postman Savedi Road SO i.e. P B Padalwar, Postman Savedi Road SO was absent from duty from 01.02.2014 to 28.02.2014 and from 01.08.2014 to 31.12.2014. It means that both witnesses agreed that Shri P B Padalwar, Postman Savedi Road SO was absent from duty without leave from 18.12.2013 to 18.01.2017."
31. This finding is against the record for the reason that the original record of enquiry shows that applicant had every time informed the respondents about his illness. Every time he had annexed medical certificate. The applicant has given justification for his absence. It is not the case that he has not given any justification for his absence. Therefore, the finding recorded by the enquiry officer is against the record. In fact in para 7, the enquiry officer has mentioned the details of the leave and memos furnished by the applicant and had given Exhibit numbers 24 OA No.85/2022 also. Despite that the enquiry officer has recorded a finding that the applicant was unauthorizedly absent which is in clear violation of Rule 63 of P&T Manual. In these circumstances, we have no alternative but to hold that the findings of enquiry officer are perverse, and therefore, needs to be interfered with.
32. In view of the above, the charge cannot be sustained because the applicant had informed about his whereabouts to the respondents and had answered to the notices issued by the respondents. OA, therefore, will have to be allowed.
33. Accordingly, OA is allowed. Order dated 25th June, 2018 passed by the disciplinary authority and confirmed by the reviewing authority by its order dated 28th June, 2019 are set aside with all consequential benefits. No order as to costs.
33A. Original record be returned to the respondents forthwith.
34. Pending MAs, if any, stand disposed of.
(Shri Krishna) (M.G.Sewlikar) Member (A) Member (J) 'SD'