Central Administrative Tribunal - Hyderabad
Shri B. Venkateshwar vs Union Of India on 10 September, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH AT HYDERABAD O.A No. 778 OF 2007 DATE OF ORDER: THE 10TH SEPTEMBER, 2008 Between:
Shri B. Venkateshwar S/o B. Laxminarayana H.No. 4-1-101/A Attapur, Rajendra Nagar Hyderabad. ... Applicant And
1. Union of India, rep. by its Secretary Department of Income Tax Ministry of Finance, New Delhi.
2. The Chief Commissioner of Incometax, Hyderabad-I, A.P. Hyderabad.
3. The Deputy Commissioner of Income Tax. Head Quarters Administration, Hyderabad. ... Respondents Counsel for Applicant : Mr. K. Sudhakar Reddy, Advocate Counsel for Respondents : Mr. G. Jaya Prakash Babu, Sr.CGSC Coram :
The Hon'ble Mr. Justice P. Lakshmana Reddy, Vice Chairman The Hon'ble Mr. R. Santhanam, Member (Admn.) (Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC) This application is filed challenging the dismissal of the applicant by order dated 30.10.2006 issued by R-3 which was confirmed by R-2 by an order dated 13.8.2007.
2. The relevant facts in brief are as follows:
The applicant was appointed as Group `D' employee in Income Tax Department on 30.9.88 on regular basis. The third respondent issued charge memo to the applicant alleging unauthorised absence from duty from 13.12.99 to 2 28.3.2000. Even prior to the said charge memo, the applicant was kept under suspension by an order dated 28.3.2000 on the ground that disciplinary proceedings were contemplated. Aggrieved by the said order of suspension, the applicant had preferred an appeal on 5.4.2000 under Rule 10 (1) of CCS (CCA) Rules. Thereafter on 5.1.2001, the suspension was revoked. To the charge memo dated 26.6.2000, the applicant submitted his explanation on 22.8.2000 denying the charges leveled against him and requesting the disciplinary authority to drop the charge.
3. Not satisfied with the explanation, the disciplinary authority appointed inquiry officer and presenting officer on 15.9.2003 and 28.4.2003 respectively. The applicant again submitted representations dated 7.10.2004, 9.11.2004 and 16.12.2004 requesting R-2 to drop the charge leveled against him on the ground that the charge is not maintainable in view of the fact that for the same period of alleged unauthorised absence, leave was already sanctioned by the competent authority. The applicant submitted a representation to the inquiry officer to that effect on 4.3.2005, but the inquiry officer proceeded with the inquiry and completed the same and submitted his report on 18.4.2006 holding that the charge of unauthorized absence for the period from 13.12.1999 to 28.3.2000 is not maintainable in the light of the leave granted by the Senior Authorised representative ITAT, Vishakapatnam in his proceedings dated 20.12.2001. But the inquiry officer held that the absence of the applicant on 16.8.99, 17.8.99, 2.9.99, 3.9.99, from 10.9.99 to 23.9.99 and from 28.9.99 to 29.9.99, from 5.10.99 to 8.10.99, 11.10.99 and from 25.10.99 to 4.11.99, i.e. for a period of 36 days was unauthorised. The applicant remained absent without proper leave sanctioned by the competent authority. The said report was communicated to the applicant for his comments on 17.7.2006. The applicant submitted his representation dated 3 4.8.2006 against the findings of the inquiry officer raising the following contentions:
(i) The charge itself is not a fact as the date of suspension in the
charge memo mentioned as 28.3.1999 as against the fact that
the applicant was placed under suspension from 28.3.2000.
(ii) The applicant was not provided with the copies of the
documents as per Annexure III to the charge memo.
(iii) The documents as per Annexure-III in original were never
produced during the course of the inquiry proceedings.
(iv) The inspection of the documents was not carried out.
(v) The applicant's absence between the periods 1991 to 1998
is regularized; regular increments have been granted; and
the service register was not produced.
(vi) The applicant's period of absence from 31.12.1999 to 28.3.2000
(the day of suspension) was also regularized.
4. The disciplinary authority (R-3) after considering the report of the inquiry officer and also the representations submitted by the applicant against the inquiry officer's report passed the impugned order dated 30.10.2006 accepting the findings of the inquiry officer and imposing major penalty of dismissal from service which shall be a disqualification for future employment under the Government under Rule 11 (ix) of the CCS (CCA) Rules 1965. Against the said order, the applicant filed an appeal on 28.3.2000 to the Chief Commissioner of Incometax, the second respondent. The appellate authority (R-2) rejected the appeal by an order dated 13.8.2007 and confirmed the orders passed by the disciplinary authority. Aggrieved by the said impugned orders dated 30.10.2006 and 13.8.2007, the applicant filed the present application on the following grounds:
1. The charge leveled against the applicant is not maintainable in view of the fact that the competent authority has already sanctioned the leave for the alleged period of unauthorised absence from 13.12.1999 to 28.3.2000.
2. The Inquiry Officer having categorically held that the charge of unauthorised absence from 13.12.1999 to 28.3.2000 is not maintainable, the disciplinary authority ought to have exonerated the applicant from the 4 alleged misconduct of unauthorised absence when he has not disagreed with the said finding of the inquiry officer.
3. The finding of the Inquiry Officer that the unauthorised absence without proper leave for the periods earlier to 13.12.1999 is proved against the applicant is beyond the scope of the charge leveled against the applicant. The disciplinary authority ought not to have acted upon the said irrelevant finding of the inquiry officer to impose the punishment of dismissal on the applicant. Such an action on the part of the disciplinary authority is illegal, arbitrary and unconstitutional besides being violative of principles of natural justice.
4. There is total denial of reasonable opportunity to the applicant in as much as the documents mentioned in Annexure-III to the charge memo were neither marked during the course of the inquiry proceedings nor copies of the same were supplied to the applicant.
5. The inquiry proceedings were held contrary to the procedure laid down in the CCS (CCA) Rules, 1965 resulting in violation of statutory provisions.
6. The impugned punishment of dismissal from service is highly disproportionate to the gravity of the charge against the applicant.
7. The impugned punishment is violative of Articles 14 & 311 of the Constitution of India.
5. The respondents contested the application and filed detailed reply statement. The sum and substance of the said reply is that due inquiry was conducted in accordance with the procedure prescribed under CCS (CCA) Rules, 1965 and opportunity was given at every stage to the applicant to defend his case. The disciplinary authority, after due consideration of the inquiry officer's report and representation of the applicant against the inquiry officer's report, R-3 passed an elaborate order giving reasons for accepting the report of the inquiry officer and the appellate authority also after due consideration of the grounds of appeal, rejected the appeal and confirmed the orders passed by the disciplinary authority and therefore, there is no scope for interference by this Tribunal and the application is liable to be dismissed as devoid of merits. The respondents pleaded that the charge not only covered the period of absence .from 13.12.99 to 28.3.2000 but also covered the unauthorised absence on earlier occasions, details of which 5 contained in the imputations of misconduct annexed to the charge memo. Therefore, there is no illegality or irregularity on the findings of the inquiry officer which was accepted by the disciplinary authority and the appellate authority and hence needs no interference by this Tribunal.
6. The points that arise for consideration in this application are:
(i) Whether the finding of the inquiry officer that the applicant is guilty of unauthorised absence for the period for 36 days in three spells prior to 13.12.99 is sustainable in law?
(ii) If so, whether the punishment of dismissal from service is disproportionate to the charge proved?
7. Point No. (i):
The law is well settled that the scope for interference with the findings of the inquiry officer and disciplinary authority by the Tribunals or Courts is very much limited as Tribunals and Courts are not appellate authorities to sit in judgement over the findings arrived at in the disciplinary proceedings. Unless, the findings are perverse or there is violation of principles of natural justice, the Courts or Tribunals cannot interfere with the findings arrived at in the inquiry proceedings. The main contention of the applicant in this case is that the principal charge of alleged unauthorised absence for the period from 13.12.1999 to 28.3.2000 is held not proved by the inquiry officer and therefore, the inquiry officer erred in holding the applicant guilty of unauthorised absence for 36 days in three spells, viz. 16.8.99 and 17.8.99 for 2 days; 2.9.99, 3.9.99, 10.9.99 to 23.9.99, 28.9.999 and 29.9.99 together 18 days; and 5.10.99 to 8.10.99, 11.10.99 and 25.10.99 to 4.11.99 for 16 days. According to the applicant, the said periods of absence are not mentioned in the charge and further the said periods were already treated as `dies non' and he was denied salary and the said periods were not 6 counted for increments and therefore the said period is already regularized. We are unable to agree with the contention of the applicant that there is no allegation of unauthorised absence in respect of the above said 36 days in the charge memo. As seen from the charge memo, the unauthorised absence alleged in the charge memo is not only in respect of the period from 13.12.1999 to 28.3.2000 but also on earlier occasions, the details of which contained in the statement of imputations of misconduct (Annexure A-II). Admittedly, Annexure A-II contained the details of these 36 days. Annexure A-II is also part of the charge memo and it is also served on the applicant. In fact, the applicant also gave defence statement explaining the allegations of unauthorised absence during those 36 days. It is useful to extract the relevant portion of the defence statement of the applicant:
The disciplinary authority alleged that I abstained from duty on 16.8.99, 17.8.99 without prior permission. I submit that I attended the office on the said dates and affixed my signature in the attendance register. When I was asked to explain, I submitted my explanation orally that I attended the office.
The disciplinary authority mentioned that I was absent from duty without prior intimation on 2.9.99, 3.9.99, 10.9.99 to 23.9.99, 28.9.99 and 29.9.99. It is submitted that during the period my wife was not keeping good health and I had to attend on her health. She was admitted in Narmada Hospital for pre-natal abnormalities. Due to certain emergency situations during the treatment of my wife who was pregnant, I had to leave the office without prior intimation but I submitted the leave applications immediately thereafter. Therefore, it is submitted that my absence during the months of August, September, October and November, 1999 may not be treated as wilful. From the above said defence statement it is clear that specific allegations of unauthorised absence for the said periods was made against the applicant and the applicant was given sufficient opportunity to explain his absence. Therefore, it cannot be said that the applicant is in any way prejudiced in this regard. The applicant denied having been given reasonable opportunity on the ground that the documents mentioned in Annexure -III to the charge memo were neither marked 7 during the course of inquiry nor copies of the same was supplied to him. As seen from the defence statement of the applicant, he admitted about his absence without prior permission or leave except two days, i.e.16.8.99 and 17.8.99. Therefore, the question of marking the documents to prove the absence of the applicant on those days does not arise. No prejudice is caused to the applicant on account of non-marking of any of the documents mentioned in the charge memo. The applicant further pleaded in the application that the inquiry proceedings were held contrary to the procedure laid down in the CCS (CCA) Rules, 1965 resulting in violation of the statutory provisions. But he did not elaborate as to which procedure is contrary and as to which statutory provisions were violated. As seen from the inquiry officer's report dated 17.7.2006, furnished by the learned standing counsel for the respondents, at every stage due opportunity was given to the applicant to prove that his absence was not unauthorised. Defence assistant facility was also availed by the applicant, but of course on 4.3.2005, the defence assistant was absent bu the applicant did not seek adjournment on that count, obviously for the reason that he admitted about his absence without sanction of leave. As seen from the report, the documents mentioned in Annexure-III are marked as S-1 to S-28 and the applicant also marked one documents, viz. Letter dated 28.3.2005 in order to prove that leave was sanctioned to him for the period from 13.12.1999 to 28.3.2000 in the year 2001. No witness was examined on behalf of the prosecution obviously for the reason that the applicant himself admitted about his absence during the periods mentioned in charge memo under Annexure A-II. As the applicant admitted about his absence, the burden is on him to prove that his absence was not wilful. It is not disputed that the applicant did not apply for leave prior to his leaving the office. Without sanction of leave, the applicant remained absent. Therefore, it amounts to unauthorized absence.8
Merely because the applicant submitted his leave application subsequent to his joining, it cannot be said that the said absence is regularized unless the leave is sanctioned, at least subsequently. Merely because the applicant was sanctioned increments for the subsequent years after excluding the periods of absence and treating the said periods as `dies non' , it does not amount to regularization. The very fact that the said period was treated as `dies non' itself indicates that the department did not choose to treat the said period as justifiable absence. The applicant failed to satisfactorily explain his failure to file an application for leave before absenting himself. According to the respondents, the applicant did not even choose to inform about his absence. The reason given for the applicant's failure to remain absent without sanction of leave, in his defence statement extracted supra, is not at all convincing. Such domestic problems is not a ground for not submitting application seeking leave as and when remained absent. Therefore, we are unable to hold that the findings of the inquiry officer that the absence of the applicant during the above referred 36 days amounts to unauthorised absence, is perverse. In our considered view, the said findings are based on evidence, and admitted facts and disciplinary authority rightly accepted the said findings and appellate authority also rightly confirmed the same. We do not find any reason for interference with such findings based on evidence, and arrived at after due inquiry. Thus, this point is found against the applicant.
8. Point No. (ii):
The disciplinary authority imposed punishment of `dismissal from service which shall be a disqualification for future employment under the Government'. The charge of unauthorised absence proved is only for 36 days. Further for that period, the applicant was denied salary and the said period was not counted for the purpose of increments also. Of course, as seen from Annexure-II, the applicant 9 was issued about 28 memos for unauthorised absence starting from the year 1991 on different occasions. Obviously, the disciplinary authority felt that the applicant is a habitual absentee. Even though in such cases the disciplinary authority is justified in not continuing such person in service, his services can be terminated by way of compulsory retirement also. Dismissal from service is a disqualification for future employment under the law and even removal also disentitle the applicant from claiming the retirement benefits. As there is no misconduct involving moral turpitude or misappropriation, such misconduct cannot be termed as gravest misconduct which warrants removal or dismissal. Therefore, in our considered view, the punishment of dismissal from service for proved unauthorised absence of 36 days in 3 spells is highly disproportionate. We consider that it is a fit case to set aside the punishment of dismissal under impugned orders dated 30.10.2006 and 13.8.2007 and remit back the matter to the disciplinary authority to reconsider the quantum of punishment and to impose any punishemnt other than the removal or dismissal. Thus, this point is found accordingly.
9. Point No. (iii):
In the result, the application is partly allowed setting aside the impugned orders dated 30.10.2006 and 13.8.2007, so far as it relates tot he quantum of punishment and remitting back the matter to the disciplinary authority for reconsideration of the quantum of punishment in the light of the observations made supra. The application is partly dismissed confirming the findings of the inquiry officer, accepted by the disciplinary authority and confirmed by the appellate authority regarding unauthorised absence for 36 days. There shall be no order as to costs.
(R. Santhanam) (P. Lakshmana Reddy)
Member (A) Vice-Chairman
Dated: 10th September, 2008