Central Administrative Tribunal - Ernakulam
K. Gopakumar vs The Chief Staff Officer (P And A), ... on 22 March, 2004
Equivalent citations: 2005(1)SLJ217(CAT)
JUDGMENT H.P. Das, Member (A)
1. The applicant K. Gopakumar, a compulsorily retired Fireman Grade-I in INS Venduruthy is before us challenging the order of compulsory retirement as being irrational and disproportionate for the alleged misconduct of unauthorised absence and habitual absenteeism. It is the applicant's case that in regard to unauthorised absence his valid explanation including a medical certificate were not considered and in regard to habitual absenteeism he had already been punished on each occasion and these could not be cited cumulatively as grounds for misconduct again for imposition of major penalty. The main grounds for seeking relief arc that the enquiry process itself was vitiated and that the major penalty of compulsory retirement was imposed disproportionately in a mindless exercise of Executive Authority without ever considering the circumstances in which the applicant failed to obtain prior sanction of leave of absence and the fact that he had already been penalised for the misconduct of unauthorised absence by imposing minor penalties.
2. The learned Counsel for the applicant, detailing the facts of the case, stated that the applicant was absent from duty in two spells during 1995-96. One spell was from 10.11.1995 to 18.12.1995 and another spell was from 10.12.1995 to 25.12.1995. On joining duty after the first spell he had submitted a medical certificate on 9.12.1995 and due to ill-health had again proceeded on leave from 10.12.1995. He had to remain on leave due to illness until 25.12.1995 and when he returned to duty he was handed over a memorandum of charges on 30.12.1995 alleging that he had remained unauthorisedly absent from 10.11.1995 to 8.12.1995 and from 10.12.1995 to 25.12.1995, and that he was guilty of habitual absenteeism. He submitted his defence statement on 10.1.1996, but before the enquiry could commence he was transferred to INS Venduruthy and on 27.3.1997, the Commanding Officer of INS Venduruthy cancelled the charge memo on the ground of it being defective and issued a fresh chargesheet listing the same charges again. Though this was irregular, the applicant went through the enquiry process in good faith believing all along in the fairness of the process and that his admitted unauthorised absence for which he had submitted the necessary medical certificate on rejoining duty would not be so serious a misconduct as to deserve the punishment of compulsory retirement. The applicant's comprehension of the proceedings of the enquiry was also not complete as the proceedings were conducted in English and at his request he was only asked certain questions in Malayalam. He had signed the proceedings again in good faith, but later when he got the text examined he discovered his answers as recorded were not even relevant to the questions. Further, the examination of witness No. 4 (Smt. Nalini, LDC) whom the applicant had given prior intimation of his absence was inconsistent in as much as she changed her stand during the second round of examination and no reliance could be placed on her version. It was by asking certain leading questions to the witnesses that the Inquiry Officer and Presenting Officer sought to piece together disjointed, inconsistent and unreliable evidences against the applicant. The inquiry report was served on him on 10.4.2000 affording him the opportunity of making any representation/submission against the findings of the Inquiry Officer and he represented on 3.5.2000 bringing it to the notice of the Disciplinary Authority that the present enquiry related to an alleged misconduct pertaining to an earlier period, while in a similar charge pertaining to a later period he had already been punished with a minor penalty and that since then the applicant has been discharging his duties loyally and efficiently without giving the authorities any cause for complaint. The applicant in his representation of 3.5.2000 also pleaded that about of illness had led to his unauthorised absences in different spells until 1997 and since then he has improved in health, attending to this duties, and no serious view be taken of the present inquiry report relating to an earlier period (November-December 1995) when he was passing through a phase of illness. The Disciplinary Authority rejected the representation and imposed the severest penalty of compulsory retirement on the applicant on 12.10.2000. The applicant filed an appeal before the Appellate Authority on 21.10.2000 bringing to his notice the fact that his representation had not been given due consideration by the Disciplinary Authority and that the enquiry process itself was grossly vitiated. The Appellate Authority rejected the appeal and confirmed the penalty of compulsory retirement from service. In the first place the learned Counsel argued the direction to impose a major penalty for unauthorised absence was uncalled for and secondly the applicant's appeal against a vitiated enquiry process and disproportionate penalty was found to be of no avail. That is how, the learned Counsel for the applicant submitted, a poor Government servant deprived of any means of livelihood, wronged by a pitiless system of administration, is before this Tribunal seeking reinstatement in service.
3. The learned Counsel for the respondents, brought to our notice that the applicant's case is one where leniency or mercy had no effect. He has been a habitual absentee and on many other occasions has been treated lightly with the hope that he would improve. But he has gone on repeating the same misconduct over and over again thereby compelling the respondents to take the ultimate course of action available. The learned Counsel pleaded that the applicant being a Fireman was a critical functionary in the running of fire service and his sudden absences without any notice and his reappearances with lame explanations unsupported by proper evidences, were not pardonable. He listed out the punishments given to him for his various misconducts relating to unauthorised absences :
(i) Censure on 23.4.1988.
(ii) Withholding of one increment without cumulative effect for a period of three months on 29.8.1991.
(iii) Withholding of one increment without cumulative effect for a period of one year-on 10.3.1992.
(iv) Censure on 22.1.1993.
(v) Withholding of one increment without cumulative effect for a period of two years on 16.9.1993.
(vi) Withholding of one increment without cumulative effect for a period of two years on 10.3.1998.
(vii) Reduction of pay by reducing one stage from Rs. 3660 to Rs. 3590 for a period of three months w.e.f. 1.12.1998.
4. It was the contention of the learned Counsel for the respondents that despite the imposition of a series of penalties, the applicant showed no improvement as would be seen from the list of penalties over a period of ten years. Responding to the point made by the learned Counsel for the applicant that the latest penalty now imposed related to an earlier spell of absence, when similar alleged misconducts later had been treated with minor penalties only, the learned Counsel for the respondents argued that each instance of misconduct was handled on its own basis. That lighter penalties were handed out in two cases arising later, cannot be the basis of an argument as to why tougher punishment was awarded for an act of misconduct committed earlier. Further, the charge of habitual absenteeism according to him gets automatically established by the fact that the same act of misconduct was committed later even during the course of the disciplinary process relating to the earlier cases. In regard to the applicant's grievance that his representations and appeals were not considered by the appropriate authorities the learned Counsel for the respondents argued that in view of the applicant's admission of guilt there was no reason to suspect the enquiry process and in regard to the quantum and nature of punishment no relaxed view could have been taken as subsequent events proved. In reply to a query as to how subsequent events would be allowed to colour the judgment in respect of a previous event, the learned Counsel pointed out that one of the charges was 'habitual absenteeism' and the Appellate Authority could not be faulted for taking note of the fact that the applicant was beyond correction. He however contended that the disposals by the Disciplinary Authority and the Appellate Authority have not been coloured by any prejudice as the guilt was admitted during enquiry and the applicant's objection regarding the bonafides of the enquiry process were at best an afterthought in self defence when the penalty was dispensed. The applicant was mistaken in his impression, the Counsel contended, that he would be let off on each occasion and he would continue to benefit from the grace of compassion. Reacting to an opinion as to whether the punishment was proportionate to the alleged act of misconduct, the learned Counsel argued that even a more serious punishment of dismissal could have been considered, but for a contemplation that the lesser punishment of compulsory retirement would be adequate.
5. We have heard the Counsels and have examined the facts, evidences and arguments advanced by both, very carefully, as the matter relates to a case of compulsory retirement as a major penalty that has deprived a Government servant of his employment. The law in regard to the compulsory retirement of Government servants in terms of service rule is almost settled now by a number of decisions of the Apex Court. It has been repeatedly held that the power to retire compulsorily a Government servant in terms of the service rules is absolute provided the authority concerned forms an opinion bonafide that it is necessary to pass such an order in public interest. But when compulsory retirement is imposed as a major penalty under Rule 14 of the CCS (CCA) Rules, the scope of judicial scrutiny is wide open as it brings into play a host of factors impinging on the very rationale of penal action and its maintainability by propriety, proportionality and appropriateness. The learned Counsel for the applicant, through his pleadings, sought to convince us that the very rationale of disciplinary action in the present case was open to question as it minconstrued an instance of 'failure to adhere to the authorised procedure' as an instance of gross 'misconduct'. Recognising the distinction between an act of unauthorised nature and an act of misconduct, we hold that an act of unauthorised nature in itself would not constitute misconduct unless it is 'gross' enough and 'motivated' enough to attract such a clarification. An instance of absence without prior sanction or prior intimation under certain compelling circumstances would at worst be an instance of human failure, pardonable in best of times by regularisation with displeasure and when unpardonable treated with a break in service. There is nothing 'gross' in the act of unauthorised absence as the respondents have no case that the Fireman fiddled when the ship was on fire, there is also no motive as the ground of illness has not even been questioned, far from being assailed. So, as the Counsel contended, the very rationale of disciplinary action was open to question. A case of unauthorised absence of an individual employee, argued the Counsel, would be adequately coverable under FR 17-A. We would see how. We are a trifle surprised that neither the Disciplinary Authority nor the Appellate Authority at no stage ever considered the evidence on record to evaluate if the penalty was proportionate to the act of negligence or irregularity, was without motive, and if the act itself was as such an act of misconduct.
6. We have noted that the applicant was penalised for unauthorised absence on seven occasions between 1988 and 1998. The range of penalties cover virtually the whole spectrum of minor penalties from censure to reduction to a lower stage, all for unauthorised absence. Five of these seven, related to the period 1988 to 1993 i.e. to a period prior to the present case, and two of these related to 1998 i.e. to a period after the present case. In all the seven cases minor penalties were imposed without conducting any enquiry. Only in this case, charges were framed under Rule 14 of the CCS (CCA) Rules for major penalty. The two later penalties were imposed during the progress of enquiry in the present case which originated earlier.
7. Annexure to Rule 14 of CCS (CCA) Rules cover the following cases for the imposition of major penalty :
Types of cases which may merit action for imposing one of the major penalties.
1. Cases in which there is a reasonable ground cases to believe that a penal offence has been committed by in which there is a reasonable ground by a Government servant but the evidence forthcoming is not sufficient for prosecution in a Court of Law :
(a) possession of disproportionate assets
(b) obtaining or attempting to obtain illegal gratification
(c) misappropriation of Government property, money or stores
(d) obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate.
2. Falsification of Government records.
3. Gross irregularity or negligence in the discharge of official duties with a dishonest motive.
4. Misuse of official position or power for personal gain.
5. Disclosure of secret or confidential information even though it does not fall strictly within the scoope of the Official Secrets Act.
6. False claims on the Government--like T.A. claims, reimbursement claims, etc.
8. Would unauthorised absence constitute a punishable offence of any of the types detailed in the rules? The nearest one can come to classify it under a category it would perhaps be classed under category 3 i.e. gross irregularity or negligence in the discharge of official duties with a dishonest motive. But in the absence of dishonest motive, this would also crumble. As a matter of fact FR17-A already provides a mode of treatment of unauthorised absence in the case of an individual employee. This provision also covers desertion of the post. Under this rule such unauthorised absence should be deemed to cause an interruption or break in the service of the employee. Here too a reasonable opportunity is to be given before invoking the penal provision. In the instant case the enquiry that was conducted could be deemed to have provided that reasonable opportunity, but for the fact that the enquiry was instituted for the imposition of a major penalty under Rule 14 of the CCS (CCA) Rules. Government of India Decision 2 below FR 17-A makes ample provision for the treatment of unauthorised absence as dies non or resulting in break in service. In the absence of a motive or background of lack of any serious breach in the discharge of official duties based on actual damage caused to the fabric of governance or accountability structure, FR 17-A, and not CCS (CCA) Rule 14, was the option that recommended itself. It is indeed unusual that all cases of unauthorised absences relating to the applicant have been treated under the CCS (CCA) Rules without ever seeking to invoke FR 17-A. Government of India Decision 5 below Rule 11 of CCS (CCA) Rule covers the position adequately.
"(5)(iii) : If a Government servant absents himself abruptly or applies for leave which is refused in the exigencies of service and still he happens to absent himself from duty, he should be told of the consequences, viz., that the entire period of absence would be treated as unauthorised entailing loss of pay for the period in question under proviso to Fundamental Rule 17, thereby resulting in break in service. If, however, he reports for duty before or after initiation of disciplinary proceedings, he may be taken back for duty because he has not been placed under suspension. The disciplinary action may be concluded and the period of absence treated as unauthorised resulting in loss in pay and allowances for the period of absence under proviso to FR 17(1) and thus a break in service. The question whether the break should be condoned or not and treated as dies non should be considered only after conclusion of the disciplinary proceedings and that too after the Government servant represents in this regard".
9. We are thus of the view that while the enquiry process was not vitiated, the very act of imposing the major penalty of compulsory retirement for unauthorised absence was unwarranted, inappropriate, disproportionate and arbitrary. The fact that the applicant's performance in the assigned job was not in any manner questioned, that there was no reasonable ground to believe that the applicant had committed any gross irregularity or negligence in the discharge of official duties with a dishonest motive by remaining unauthorisedly absent from duty, convinceous that the order of penalty of empuslory retirement was perverse in the sense that no reasonable person would form the requisite opinion on the given material.
10. We therefore set aside the impugned order of compulsory retirement and direct that the applicant be reinstated immediately on receipt of this order and the period intervening between the date of compulsory retirement and the date of reinstatement be treated as duty for all purposes and the applicant be paid within a month of reinstatement the full pay and allowances for the period which he would have been entitled had he not been compulsorily retired, with liberty to the respondents to treat the period of unauthorised absence as break in service or as leave of the kind due as they deem fit under the rules governing the matter. No order as to costs.