Central Administrative Tribunal - Bangalore
Chandra S V vs Nimhans on 29 February, 2024
1 OA 169/2021/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00169/2021
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Shri Chandra S.V.,
S/o S.Venkateshan,
Aged about 42 years,
Hospital Assistant (Group-D),
(Now under Removal from Service),
National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Bengaluru-560029,
R/at No.695, 17th Cross,
5th Main, Agrahara Badavane,
Yalahanka,
Bengaluru -560064. ...Applicant
(By Advocate, Shri Basavaraja Patel G.K.)
Vs.
1. The Union of India,
Department of Health and Family Welfare,
Nirman Bhavan,
3rd Floor, 'A' Wing,
New Delhi -110003,
Rep by its Secretary.
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2. The Registrar & Disciplinary Authority,
National Institute of Mental Health
And Neuro Sciences (NIMHANS),
Bengaluru-560029.
3. The Assistant Administrative Officer (H),
National Institute of Mental Health
And Neuro Sciences (NIMHANS)
Bangalore -560029. ...Respondents
(By Advocate, Shri Vishnu Bhat for Respondent No.1 and Shri
K.Prabhakar Rao for Respondents No.2 and 3)
ORDER
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"I. Call for the entire records relating to the imposing of the order of removal from service NIMH/HOS/EST- 2/SVC/E-608/2017-18 Dated 23.10.2017 passed by the respondent no.2 vide Annexure A10, peruse and quash the same as arbitrary, illegal and discriminatory being violative of Article 14 and 16 (1) of Constitution of India;
3 OA 169/2021/CAT/BANGALORE BENCH II. Issue a writ, order or direction to the respondents to reinstate the Applicant in service by modifying the punishment having regard to the peculiar facts and circumstances of the case, and grant all the consequential benefits;
III. Pass such other order or orders as this Hon'ble Tribunal may deem fit and necessary in the circumstances of the case."
2. The facts in brief as stated by the applicant are that he was working as Hospital Assistant in National Institute of Mental Health and Neuro Sciences, Bengaluru, being appointed vide memorandum dated 18.11.2008 and successfully completing his probationary period. While working as such, the applicant did not attend duty regularly due to sudden brain stroke to his mother and her ailments. Third Respondent has issued official memorandum to the applicant on 29.04.2017 and 19.05.2017 directing him to report back to duty forthwith failing which disciplinary action in accordance with rules will be initiated and also directed to furnish his written submission. The applicant submitted his reply along with medical certificates of his mother. However, the Respondent No.2 proceeded to issue Article of charge with Statement of imputations, list of documents and list of 4 OA 169/2021/CAT/BANGALORE BENCH witnesses vide memorandum dated 07.07.2017. The inquiry was held, the Inquiry Officer submitted the report holding the charges proved to which the applicant submitted his explanation. However, the Disciplinary Authority issued the order of penalty dated 23.10.2017 removing the applicant from service. Being aggrieved, the applicant preferred Writ Petition No.8957/2020 before the Hon'ble High Court of Karnataka, which came to be dismissed on 20.01.2021 with liberty to the applicant to approach this Tribunal. Hence this OA.
3. Learned Counsel Shri Basavaraj Patel G.K. representing the applicant submitted that the inquiry has been conducted in a farcical manner, the procedural safeguard enumerated in the CCS (CCA) Rules, 1965 ('Rules' for short) has been utterly violated. Learned Counsel further submitted that even assuming that the applicant has remained absent for the period mentioned in the charge memo i.e., for a period of 40 days, the mere absence cannot be considered as misconduct unless it is established to be intentional and unexplained. The applicant had given plausible explanation. The absence was due to the ailment of his mother who was suffering from brain stroke. The Disciplinary Authority has referred to the past history of the applicant while issuing the penalty order which was not called for. Placing reliance on the judgment of 5 OA 169/2021/CAT/BANGALORE BENCH Hon'ble High Court of Karnataka in Deepa Sharma vs. The AOC-IN- C, Appellate Authority, Bangalore and others - W.P.No.44337/2016 (S-CAT) (DD:15.12.2016), learned Counsel submitted, the past misconduct which was not included in the present memorandum of charge cannot be considered. Therefore, it was incumbent on the Disciplinary Authority to examine as to whether the absenteeism for 40 days without obtaining prior sanction of leave deserves to be imposed with a punishment of removal from service. Thus the learned Counsel submitted that the order of Disciplinary Authority deserves to be set aside being arbitrary and contrary to the well settled principles of law. Learned Counsel further submitted that the delay in filing the OA requires to be condoned having regard to the sufficient cause shown i.e., the illness of the applicant's mother and Covid-19 pandemic situation as well as the pendency of the matter before the Hon'ble High Court of Karnataka.
4. Learned Counsel Shri K.Prabhakar Rao representing Respondents 2 and 3 justifying the impugned order submitted that the OA deserves to be rejected at the threshold on the ground of delay and laches. The Inquiry Officer conducted the inquiry in accordance with law. The applicant has admitted the charges levelled against him. The 6 OA 169/2021/CAT/BANGALORE BENCH inquiry report submitted by the Inquiry Officer was forwarded to the applicant to submit his response to which the applicant stated he was forced to take leave for his mother's illness without informing his superiors due to emergency condition. The Disciplinary Authority considering the nature of charges levelled against the applicant vis-à-vis State of Imputation of misconduct and misbehaviour in support of Articles of charge framed against the applicant, passed the impugned penalty order after providing reasonable opportunities to the applicant to defend his case. The quantum of punishment awarded by the Respondent No.2 is proportionate to the charges levelled against him. Distinguishing the judgment passed by the Hon'ble High Court of Karnataka in Deepa Sharma Supra, learned Counsel submitted that the past misconduct of the applicant and the punishment imposed were shown in the statement of misconduct. It was further argued that the applicant has not exhausted alternative remedy of appeal under the provisions of the Rules. On these grounds, learned Counsel sought for dismissal of the OA.
5. We have carefully considered the rival submissions of the learned Counsel for the parties and perused the material on record.
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6. It is not in dispute that the applicant has admitted the charges levelled against him. The main argument of the learned Counsel for the applicant boils down to the quantum of punishment i.e., removal from service awarded by Respondent No.2 as not proportionate to the charges levelled against the applicant. The memorandum dated 07.07.2017 indicates that the Respondent No.2 proposes to hold an inquiry against the applicant under Rule 14 of the Rules. The statement of Article of charge and statement of imputation of misconduct and misbehaviour proposed in the Article of charge framed against the applicant are enclosed as Annexure-I and Annexure-II respectively. Statement of documents by which the Article of charge framed and list of witnesses by whom the article of charge framed against the applicant are proposed to be sustained are enclosed as Annexures III and IV. Annexure-I - Statement of Article of charge reads thus:
"Sri S.V.Chandra, Hospital Assistant has absented from duty unauthorizedly since 09.04.2017. He is in the habit of absenting from duties without prior permission of his superiors. His abrupt absence and overstayal has caused lot of inconvenience to the patent care services and disturbed the smooth functioning of casualty services. Remaining absent wilfully is subversive of discipline and amounts to misconduct.
8 OA 169/2021/CAT/BANGALORE BENCH Thus, he has violated Rule 3(1)(ii) and (iii) of C.C.S. (Conduct) Rules."
7. In this Annexure-I, habitual misconduct is reflected further narrated in detail in statement of imputation of misconduct or misbehaviour. Annexure-II- Statement of imputation of misconduct or misbehaviour in support of the articles of charge framed against the applicant, which forms part and parcel of the charge memorandum enumerates that the applicant has absented from duty unauthorisedly since 09.04.2017 without prior permission of his superiors. He has been served a recall memo dated 29.04.2017 and reminder dated 19.05.2017. In response, he has submitted his written explanation dated 31.05.2017 stating his family problems, which is not convincing. Further to the show cause notice dated 07.06.2017 served on the applicant directing him to report back for duty and submit written explanation for his unauthorised absence, no response was given by the applicant. In unnumbered paragraphs-3 and 4 of Annexure-II, it is categorically observed thus:
"Under Rule 3(1)(ii) and (iii) of C.C.S (Conduct) Rules, every Institute employee shall all times maintain devotion to duty and do nothing which is unbecoming of an Institute employee where as Sri.S.V.Chandra, Hospital Assistant has violated these 9 OA 169/2021/CAT/BANGALORE BENCH provisions by absenting himself from duty unauthorisedly on several occasions without prior sanction of leave.
Ever since he joined to this Institute service on 04.12.2008, he is in the habit of absenting from duties without prior sanction of leave. In the previous occasions, he has been awarded the following penalties.
1) Withholding of one annual Increment with cumulative effect vide this office order dated 23-03-2015.
2) He has been awarded the penalty of "Censure" for the same charges of unauthorized absence vide this office order dated 13-05-2016.
3) Withholding of two annual increments with cumulative effect vide this office order dated 23-03-2017.
He has availed 276 days of Extra-ordinary leave and 665 days of dies non periods in addition to his admissible leave as on 31-03-2017 in his service of 8 years. He has not shown any improvement in his behaviour in-spite of several instructions and warnings also in the past. His abrupt absence and overstayal is causing lot of inconvenience to the patient care services and disturbing the smooth functioning of hospital services. It clearly shows that, he is remaining absent wilfully and never bothered about patient care service, which is highly irregular and subversive of discipline. Thereby he lacks devotion to duty. This act of the official amounts to grave misconduct, attracting violation of Rule 3(1)(ii) and (iii) of C.C.S. (Conduct) Rules."
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8. Disciplinary Authority- Respondent No.2 has referred to this statement of imputations- part of charge memorandum, having regard to acceptance of charges by the applicant and after examination of the records and inquiry report, the Disciplinary Authority has come to a conclusion that the applicant has wilfully absented from duty unauthorisedly inspite of oral instructions, warning, punishment awarded on three occasions, which shows the applicant lacks interest in discharge of his official duties and failed to maintain devotion to duty. Accordingly, penalty of removal from service has been imposed.
9. In Deepa Sharma supra, the Hon'ble High Court of Karnataka in the context of an employee working as Ward Sahayika in the Hospital under the control of Indian Air Force, remaining unauthorisedly absent for about 120 days without obtaining prior permission of the department, considering the past misconduct which was not included in the charge memorandum and the punishment of removal from service by the Disciplinary authority imposed, confirmed by the Appellate Authority, observed that the aspects which are not included in the memorandum of charge or any other misconduct not included in the memorandum of charge, cannot be considered in the 11 OA 169/2021/CAT/BANGALORE BENCH course of disciplinary proceeding. It has been observed that it was required for the Appellate Authority to independently consider the aspects of proportionality of the punishment limited to the charge and the factum whether the charge was proved in the inquiry and thereafter to decide as to whether the appropriate punishment has been awarded by the Disciplinary Authority or not. As there was no discussion in this regard by the Appellate Authority, setting aside the order of Appellate Authority, the matter was remanded to the Appellate Authority to consider the appeal afresh in the light of the observations made therein and pass appropriate order after giving an opportunity of hearing to the petitioner therein.
10. This judgment would be of little assistance to the applicant, since in the present case, habitual absenteeism is shown in the Articles of charge, the statement of imputations of the charges clearly explains the earlier misconduct proved against the applicant and the punishment imposed thereon. Indeed Article of charge, Statement of imputations of misconduct or misbehaviour, list of documents and list of witnesses are placed at Annexure-I to IV respectively to the charge memorandum dated 07.07.2017. Hence it cannot be held that the principles of natural justice was violated in referring to the past misconduct of the applicant's 12 OA 169/2021/CAT/BANGALORE BENCH unauthorised absenteeism. Though the Article of charge at Annexure-I refers to the unauthorised absenteeism of the applicant from 09.04.2017, it refers to his habitual absenteeism. In Annexure-II, statement of imputation of misconduct and misbehaviour evinces that the applicant joined the institute service on 04.12.2008, since then, he is in the habit of absenting from duty without prior sanction of leave. The applicant was awarded the penalties on three occasions as under:
1) Withholding of one annual Increment with cumulative effect vide office order dated 23-03-2015.
2) The penalty of "Censure" for the same charges of unauthorized absence vide office order dated 13-05-2016.
3) Withholding of two annual increments with cumulative effect vide office order dated 23-03-2017.
In addition to that he has availed 276 days extra-ordinary leave and 665 days of dies non periods in his service of eight years. It is obvious that abrupt absence without sanction of leave caused lot of inconvenience to the hospital services in the patient care services. Stern action was warranted because taking a lenient view on repeated habitual absenteeism not only disturbs the smooth functioning of hospital services but gives a wrong message to the stakeholders involved including the other hospital staff.
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11. Section 20 of Administrative Tribunals Act, 1985, provides that a Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant has availed of all the remedies available to him under the relevant service rules as to the redressal of grievances. It is ex-facie apparent that the applicant without exhausting the alternative remedy of appeal available under Section 20 of the Administrative Tribunals Act, 1985, has approached this Tribunal challenging the order of the Appellate Authority. Hence the OA deserves to be rejected on this ground also.
12. The applicant has challenged the order of penalty dated 23.10.2017 before the Hon'ble High Court of Karnataka in W.P.8957/2020 on 25.06.2020. Even assuming the delay caused in prosecuting the matter before a wrong forum deserves to be condoned, the delay during the pendency of the Writ petition before the Hon'ble High Court could be condoned but not the delay caused in approaching the Hon'ble High Court in challenging the order dated 23.10.2017. Hence, the inordinate delay of 850 days in approaching this Tribunal is not satisfactorily explained by the applicant. In order to condone the delay of 850 days before this Tribunal, the applicant has taken the shelter 14 OA 169/2021/CAT/BANGALORE BENCH under Covid-19 and his mother's illness. Covid-19 pandemic cannot be considered to be a sufficient cause since the lockdown was declared in Karnataka during March, 2020, whereas the impugned order is dated 23.07.2017. To consider the illness of his mother as a ground, no habitual absenteeism can be approved merely on the ipse dixit statements of the applicant. Moreover, Government employee has to balance both official duty and family responsibilities. Considering the lapses on the part of the applicant, the opportunity provided by the respondents to the applicant by issuing show cause notice dated 07.06.2017 calling upon him to report back to duty and submit written explanation, has not been availed by the applicant.
13. It is well settled that the Courts/Tribunals can come to the rescue of a litigant who is vigilant about his rights and not to person who sleeps over the matter and raises from the slumber at his convenience like a phoenix.
14. In the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others reported in (2013) 12 SCC 649, the Hon'ble Apex Court has enunciated the legal principles for condoning the delay in the case of inordinate delay, it is held thus:
15 OA 169/2021/CAT/BANGALORE BENCH "21.8. There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
.................................
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: -
(a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(d) The increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity can be 16 OA 169/2021/CAT/BANGALORE BENCH exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
15. Hence on the ground of delay and laches also the OA deserves to be rejected. We find no merit in the explanation offered by the applicant to condone the inordinate delay of 850 days in filing the OA.
16. For the aforesaid reasons, OA is devoid of merit. Accordingly, stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.