Central Administrative Tribunal - Jabalpur
Rajat Singh vs Bharat Sanchar Nigam Ltd on 22 September, 2023
1 O.A.No. 201/00749/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
CIRCUIT SITTINGS:INDORE
Original Application No.201/00749/2018
Jabalpur, this Friday, the 22nd day of September, 2023
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Rajat Singh, S/o Shri Jaishankar Singh,
Age 41 years R/o C-1/301, Meridian Akriti, Eco City
Bhopal 462026 -Applicant
(By Advocate -Ms. Neerja Patne)
Versus
1. Bharat Sanchar Nigam Limited,
(A Government of India Enterprise)
5th Floor Bharat Sanchar Bhawan,
Janpath, New Delhi 110001
2. The Chief General Manager,
Bharat Sanchar Nigam Limited
Telecom Circle, Gujarat, Telephone Bhawan
CG Road,Ahmedabad 380006 (Guj)
3. The Principal General Manager,
Bharat Sanchar Nigam Limited
Gujarat Circle, Telephone Bhawan
Ahmedabad 380006 (Guj)
4. The Senior General Manager (Cellular)
Bharat Sanchar Nigam Limited, Ahmedabad
Telecom District, 3rd Floor, Gulbai Tekra Exchange
Ahmedabad 380006 (Guj) -Respondents
(By Advocate -Shri Vivek Nagar)
(Date of reserving the order:-10.08.2023)
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2 O.A.No. 201/00749/2018
ORDER
By Kumar Rajesh Chandra, AM:-
This Original Application has been filed by the applicant to quash the impugned order dated 12.06.2012 (Annexure A-9) issued by respondent No.4, dated 25.06.2016 (Annexure A-13), dated 22.07.2017 (Annexure A-14) issued by respondent No. 2 and dated 28.03.2018 (Annexure A-20) issued by respondent No. 2.
2. The brief facts of the case is that the applicant was initially appointed as Junior Telecom Officer in the BSNL in the year 2003. In order to pursue higher studies at his own cost, he submitted an application dated 22.01.2007 (Annexure A-1) before Assistant General Manager, Telecom Ahmedabad seeking his permission to join Master of Science Programme in advanced IT with specialization in advanced networking and Telecommunication from international institute of information technology, Pune by pursuing MS course in advance networking and telecommunications scheduled to be held w.e.f. 26.02.2007 intending to join the course at his own cost and leave without pay for study period i.e. w.e.f. 26.02.2007 to 30.06.2008. The applicant's claim for grant of leave without pay was rejected vide Page 2 of 14 3 O.A.No. 201/00749/2018 order dated 24.02.2007 (Annexure A-3) treating the same to be a case of study leave on the ground that applicant has not completed 5 years continuous service from the date of his appointment with probation period. The applicant had submitted an application on 30.06.2007 and proceeded ahead in a bonafide belief of sanctioning of his earlier application for grant of extra ordinary leave for study purpose in the institute under full knowledge of his superior authorities. To the utter surprise, the applicant came to receive a letter dated 19.10.2007 from Sub Divisional Engineer (NIB),Ahmedabad alleging unauthorized absence from duty by the applicant and calling upon him to resume his duties forthwith failing which disciplinary action shall be taken against him. The applicant in response to the aforesaid letter has clarified on 08.01.2008 that before joining the course, he applied through proper channel for grant of extra ordinary leave for study purpose by furnishing all the minutes detail of the course to be pursued by him. Again letters were issued to the applicant on 02.01.2008, 15.02.2008, 05.08.2008, 17.09.2008, and lastly on 13.10.2008 calling upon the applicant to resume his duties forthwith failing Page 3 of 14 4 O.A.No. 201/00749/2018 which he was warned of disciplinary action, which shall be taken against him for his alleged unauthorized absence from duty. The applicant was informed vide letter dated 18.03.2009 about non grant of extra ordinary leave for study purpose by the competent authority. The applicant reported for duty on 01.07.2009 at the NIB, Ahmedabad and also submitted a certificate of Institute communicating the course study by him during his stay at the Institute. Instead of appreciating the effort of applicant, the applicant was issued with a memorandum dated 24.06.2009(Annexure A-5) by the General Manager (O), Ahmedabad proposing to hold a departmental enquiry against him under Rule 36 of BSNL CDA Rule, 2006 leveling two charges of unauthorized absence from duty w.e.f. 01.10.2007 to 24.06.2009. The applicant submitted a detail and exhaustive reply to the charge sheet Annexure A-6. Being dissatisfied by the explanation so offered by the applicant, the disciplinary authority directed for holding of an oral enquiry under the provision of BSNL CDS Rules, 2006 by appointing enquiry officer and presenting officer to conduct the regular departmental enquiry against the applicant. Page 4 of 14 5 O.A.No. 201/00749/2018
3. The hostile attitude of the enquiry officer resulted in mental illness and the applicant got hospitalized for psychiatric treatment at the govt. institute of psychiatric science, hospital and research centre, Ahmedabad wherein he applicant was diagnosed that he had been suffering from Paranoid Schizophrenia for which he was treated for 20 days i.e. w.e.f. 01.12.2012 to 20.12.2012, copies of which is marked as Annexure A-7. After conducting the departmental enquiry in a pre-determined manner and without affording him reasonable opportunity of hearing, vide impugned order dated 12.06.2012 (Annexure A-9), the Senior General Manager (Cellular), Telecom, Ahmedabad has imposed upon the applicant major punishment of dismissal from service under Rule 33 (B) (j) of BSNL CDA Rules, 2006. The applicant submitted representations dated 30.05.2016 (Annexure A-11) to the authorities and thereafter on 28.06.2016 (Annexure A-12) making a request for sympathetic consideration of his case for continuation of his service as JTO, however, vide impugned order dated 25.06.2016 (Annexure A-13) and 22.07.2016 (Annexure A-14) the claim of the applicant for reinstatement in service has been rejected Page 5 of 14 6 O.A.No. 201/00749/2018 by the respondent department without assigning any reason. After that applicant submitted statutory appeal to the Principal General Manager, BSNL, Ahmedabad dated 02.08.2016 (Annexure A-15) making a request for reinstatement in service followed by representation dated 21.02.2017, 28.03.2017 & 17.06.2017 but none of the endeavour made by the applicant to get himself reinstated at the hands of the respondents yield any result. The appeal of the applicant has also been dismissed by the appellate authority i.e. Chief General Manager, BSNL, Gujarat Circle, Ahmedabad vide order dated 28.03.2018 (Annexure A/20).
4. Per-contra, the respondents have contested the claim of the applicant by filing a detailed Reply wherein they have stated that the applicant alongwith other trainees were appointed on 18.12.2003 as JTO trainee (direct recruitment). The applicant on 19.05.2006 has applied to Assistant General Manager (Admn) o/o The PR GM, Telecom Dist. Ahmedabad and requested for permission for joining the training course at M/s Cranes software varsity Bangalore for six months and along with the application of request applicant has filed declaration of study and he himself Page 6 of 14 7 O.A.No. 201/00749/2018 agreed as per clause 4 of the declaration that, study permissions is liable to be withdrawn at any time. Study leave rules has specifically mentioned, that grant of study leave shall be subject to a particular study and study tour should be approved by the authority competent to grant leave. The applicant without prior approval from respondents has by his own will remained absent from the job and without approval has left job for specific period. The applicant remained absent from his duties from 31.07.2007 to 30.06.2009 without prior permission of the department. Vide request dated 19.05.2006 he has requested for six months leave for further studies but remained absent for long period of two years and after absence of continuous two years from his official duties, applicant has presented letter to SDE for resumption of his duties on 01.07.2009 (Annexure R/4). The respondents further submitted that request for six months leave for studies was duly rejected. The applicant remained absent from his duties and resultantly letter dated 19.10.2007 from SDE (NIB) to join immediately to services was issued to applicant. As applicant did not resume his duties SDE (NIB) has issued letter to applicant on 05.08.2008 and again Page 7 of 14 8 O.A.No. 201/00749/2018 asked him to present sanction of leave for study otherwise disciplinary action will be taken against him. Thereafter dies non letter dated 17.09.2008 was issued by SDE (NIB) regarding his absence from 01.10.2007 to date of notice and same was intimated to his local address at Ahmedabad and permanent address of Bhopal and college address of Pune and the same was received by the applicant. SDE (NIB) on 18.03.2009 has issued letter regarding dies non for unauthorized absence from duty without prior permission and also sent him letter dated 29.01.2009 regarding non granting permission for study and again letter was written on 22.06.2009 regarding Dies non for unauthorized absence from duty without prior permission and in reply dated 03.03.2009 applicant mentioned that he failed four papers of previous semester and he will join in June 2009. The respondents further submitted that applicant has got four and a half months' time to take approval but applicant has applied with respondents on 27.06.2007 and applicant has also remained absent from hearings and did not cooperate with the respondents. After completion of Page 8 of 14 9 O.A.No. 201/00749/2018 whole disciplinary proceedings against the applicant major penalty was imposed on applicant on 12.06.2012 (Annexure A-18).
5. Rejoinder has been filed by the applicant by negating the contentions of the respondents made in the Reply by reiterating the averments as already urged in the Original Application.
6. We have heard the learned counsel for both the sides and have gone through the pleadings and the documents annexed therewith.
7. During the course of hearing, learned counsel for the applicant has placed reliance the following case laws:-
(i) Shri Bhagwan Lal Arya vs. Commissioner of Police, Delhi & Ors., (2004) 4 SCC 560
(ii) Raghubir Singh vs. General Manager, Haryana Roadways, Hissar, (2014) 10 SCC 301
(iii) Krushnakant B. Parmar vs. Union of India & Ors. (2012) 3 SCC 178
(iv) University of Madras vs. S. Kuppuraj, High Court of Judicature at Madras in W.A. No. 803/2017 & CMP No. 11167/2017 Page 9 of 14 10 O.A.No. 201/00749/2018
8. The question that arises before us for consideration is that whether the major penalty of dismissal from service inflicted on the applicant is grossly disproportionate to the misconduct alleged against him, and, therefore, is totally unjust, and inequitable as contended or not ?
9. We have perused the relevant orders passed by the disciplinary authorities and the orders passed by the respective Courts. In the instant case, the applicant had absented himself for more than six months but prior to his absence he always applied for the leave, which is leave without pay. The penalty of removal can be imposed only in cases if grave misconduct and continued misconduct indicate incorrigibility and complete unfitness for service. The applicant here in this case was not wilful absentee but unauthorized absentee. The punishment of dismissal from service becomes a bar for further employment, which is too harsh to an employee. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without Page 10 of 14 11 O.A.No. 201/00749/2018 any application or prior permission may amount to unauthorized absence, but it does not always mean wilful.
10. The High Court of Judicature at Madras in the matters of University of Madras vs. S. Kuppuraj, in W.A. No. 803/2017 and CMP NO. 11167/2017 deals with the similar issue, the relevant paragraphs of which are as follows:-
"7. The facts made available herein would reveal that the petitioner is hailing from economically and educationally poor family and his father was a cart puller. Though he joined the University as Electrician-cum-Lift Operator, his services were utilised more for computerization, maintenance of computers, networking and internet project and no complaint was received against him whatsoever in the manner of discharging his duties. https://hcservices.ecourts.gov.in/hcservices/ During the course of work, after obtaining due permission, he completed diploma course in Electrical and Electronics Engineering through part time study and subsequently, degree of B.E (Computer science) from Anna University, without any dislocation to the work entrusted to him. His aspiration to go for higher studies was encouraged by the superiors of the University. It is not in dispute that the petitioner applied for leave on private affairs for 5 months from February 2004 to June 2004 well in advance on 31.12.2003 to attend the coaching classes for the Post Graduation in Engineering (M.E/M.Tech). While so, he was transferred from Internet centre, Chepauk Campus to IDE admission in the place of one Rajagopalan. On 12.01.2004, he joined duty in IDE Admission Section and thereafter, proceeded on leave in anticipation of sanction of leave, as requested by him. It is also not in dispute that the respondent has not considered the leave application of the petitioner till 12.01.2004 and neither leave was sanctioned nor rejected. Thereafter, leave application was rejected and the Page 11 of 14 12 O.A.No. 201/00749/2018 petitioner was directed to report to duty immediately. Failure to comply with the same, disciplinary action was initiated against the petitioner, which ultimately ended in punishment of removal from service. The said punishment was modified by the learned Single Judge in the writ petition filed by the petitioner, into one that of reinstatement in service with other attendant benefits, however, without backwages.
8.Questioning the order modifying the punishment imposed on the petitioner, the University is before this Court. It is argued by the learned senior counsel for the appellant University that when the petitioner was transferred to the IDE Admission Section, which is an important section, at the crucial time, he has ignored the work entrusted to him and has proceeded on leave for pursuing his higher studies and thereby, caused greater inconvenience in discharging the official work, whereas, learned counsel for the writ petitioner submitted that the petitioner in anticipation of the sanction of leave, has proceeded on leave and in every communications addressed to the University, he has requested to grant leave for pursuing his higher studies and to drop the disciplinary action initiated against him. Despite the same, the request of the petitioner was declined without any valid reason and in violation of the constitutional mandate.
9.We find some force in the submissions so made on the side of the writ petitioner. When an employee at senior level, stays away from work, of-course, the department or institution is put under severe manpower strain, because it would have to burden other officers with additional duties. However, a person entering into a Government service does not forgo his fundamental rights and Article 51A(j) of the Constitution of India enjoins upon every citizen of the country to strives towards excellence in all spheres so that the nation constantly rises to higher levels and therefore, denial of an opportunity to the petitioner to pursue his higher studies cannot be countenanced.Page 12 of 14 13 O.A.No. 201/00749/2018
10.With regard to the alleged misconduct committed by the petitioner, we are of the opinion that absence from duty without any application or prior permission, may amount to unauthorised absence, but it does not always mean willful. In the present case, where the misconduct of the petitioner was unauthorised absence from duty for 5 months, but upon being charged of such misconduct, he fairly admitted his fault and explained the reason for his absence stating that he did not have any intention nor desire to disobey the order of the higher authority or violate any of the rules and regulations of the University, but the reason was to pursue his higher education. Considering the poor economic and educational background of the petitioner, the University ought to have accepted the same, but they have passed the order, imposing the punishment of removal of the petitioner from service. However, the learned Single Judge, having considered all the aspects in detail and applying the doctrine of proportionality, modified the punishment of removal from service into one that of reinstatement in service with other attendant benefits, but without backwages. The learned Single Judge further directed the University to treat the period of the petitioner's absence as leave on private affairs or any other leave to which he is eligible to, without pay and allowance. The order so passed by the learned Single Judge, in our considered view, is perfectly correct and it does not require any interference by this Court.
11.Accordingly, the writ appeal fails and the same is dismissed. Consequently, the appellant -University is directed to comply with the order of the learned Single Judge within a period of two months from the date of receipt of a copy of this judgment. No costs. Consequently, connected Miscellaneous Petition is closed."
11. Thus, from the above, we are satisfied that the punishment of removal from service imposed on the applicant is not only Page 13 of 14 14 O.A.No. 201/00749/2018 highly excessive but also disproportionate. Therefore, we set aside the punishment order and send the matter back to the disciplinary authority for passing the order afresh in accordance with the leave rules.
12. The said exercise be done within a period of 90 days from the date of receipt of a certified copy of this order. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
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