Central Administrative Tribunal - Madras
N Murali vs M/O Defence on 18 September, 2024
1 OA /310/1758/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/01758/2016
Dated this 18th day of September, Two Thousand Twenty Four
CORAM :
HON'BLE MR M. SWAMINATHAN, MEMBER(J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
N. Murali,
UDC, PA No.37188-S,
(Compulsorily Retired)
No.22, Krishna Street, AK Nagar,
Chrompet, Chennai. ... Applicant
By Advocate Mr. M. Gnanasekar
Vs
1. Union of India
rep by Air Vice Marshall Staff Officer Admin
(Appellate Authority)
HQ Training Command, Indian Air Force,
JC Nagar Post, Bangalore.
2.Civilian Gazetted Officer (Admin)
Officer I/c Civil Admin
Air Force Station,
Tambaram, Chennai. ... Respondents
By Advocate Mr. M. Kishore Kumar, SPC
2 OA /310/1758/2016
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
"(i) to set aside the order No.TC/10070/1/15/PC, dated 03.09.2012, passed by the 1st respondent and consequently
(ii) direct the respondents to reinstate the applicant with all consequential monetary and other service benefits and
(iii) to pass such other or further orders in the interest of justice and thus render justice."
2. Brief facts of the case, as submitted by the applicant are as follows:
The Applicant was initially appointed as LDC and later promoted as UDC in the year 1998 and posted to 413, Air Force Tambaram, Chennai.
He got married in the year 2010 and his wife was in her early days of pregnancy, he could not attend office on 21.09.2010 and informed his inability to attend office telephonically. However, he did not made any leave application in writing. A Memo was issued to the applicant on 06.10.2010. Further, a Show Cause notice, dated 23.10.2010 was also issued to him along with the charges with a direction to report for duty immediately. The applicant sent a detailed letter, dated 28.10.2010 about the situation under which he could not attend office and also sought leave upto 12.11.2010 on the ground of his wife's pregnancy. He further submits that the request was not considered and was issued with a
3 OA /310/1758/2016 Memorandum containing 4 Articles of charges. On receipt of the Memorandum, he made a representation, dated 10.02.2011. An inquiry was conducted and on conclusion of the inquiry, considering the report and the submission made by the applicant on the inquiry report, the Disciplinary Authority imposed the punishment of compulsory retirement. Against which, he filed an appeal requesting for reinstatement with minimum punishment. However, the Appellate Authority confirmed the penalty of compulsory retirement vide his order dated 03.09.2012. Further, by letter, dated 05.07.2016, he was asked to surrender permanent ID card, zonal pass and canteen smart card. In that said letter, the applicant was also asked to report to the office along with his spouse to process pension paper. Challenging the orders, dated 03.09.2012 and 05.07.2016, the applicant has filed the present OA.
3. The learned counsel for the applicant contended that the applicant absented himself from duty because his wife was in the early stages of pregnancy and no one in his family was available to care for her due to family disputes. He argued that this factor was not considered by either the Disciplinary or Appellate Authority.
4. The counsel further stated that the applicant had informed the office of his absence telephonically which was known to all office members.
4 OA /310/1758/2016 Despite the applicant's explanations during the inquiry, the Disciplinary Authority did not accept his statements. He argued that it is unreasonable to require documentary evidence for every routine office matter, and dismissing the applicant's statements amounted to a miscarriage of justice. The learned counsel also noted that the applicant accepted the charges against him with the expectation of a lesser punishment, as stated in his further representation. Despite this, the Appellate Authority denied his request with no leniency. The applicant had pointed out that other employees who faced similar absenteeism charges were given lesser punishments without prior leave approval. The counsel argued that the respondents' rigid stance indicated a misuse of discretion and that the impugned order is liable to be set aside and prayed for the relief sought in the OA.
On the other hand, the learned counsel for the respondents, referring to the reply statement filed by the respondents, vehemently opposed the applicant's submissions. The primary contention presented was that the applicant habitually engaged in abrupt and unauthorized absenteeism from his duties without any prior intimation, and only submitted leave applications on or after his return on numerous occasions. It was asserted that the applicant had deliberately and intentionally suppressed the reasons 5 OA /310/1758/2016 for his unauthorized absences. Specifically, the applicant was absent from duty from 21.09. 2010, to 15.11. 2010, as noted in HQ Admin Group Letter, dated 24.09. 2010.
7. He further submitted that the applicant's frequent absences have adversely affected the smooth functioning of administrative services at this station. Administrative and disciplinary actions were taken against the applicant for his misconduct and unauthorized absences, after providing him with ample opportunities to rectify his behaviour. However, the applicant failed to correct his conduct and continued to commit similar lapses of prolonged absenteeism.
8. He further contended that a show cause notice was issued to the applicant, asking why disciplinary action should not be initiated against him for his unauthorized absences. In response, the applicant sent a reply in which he mentioned that (i) his wife was pregnant and about to deliver a baby, and (ii) the baby's movements had been stagnant, requiring his presence to take care of her as advised by the Doctor. This information about the applicant's wife was only disclosed only through the show cause notice. However, as per the Service Records, the applicant is listed as unmarried, and he has not produced any documentary proof of his marriage. Furthermore, the nomination forms for his terminal benefits list 6 OA /310/1758/2016 his mother, Smt. N. Lalitha, as the nominee. The applicant should have updated his service documents to include his wife's name after marriage, but he failed to do so.
9. The learned counsel further submitted that during the course of inquiry, the applicant himself has stated that he had accepted the charges framed against him under Articles I to IV. Thus, the Disciplinary Authority after considering the proceedings thoroughly on the basis of articles of charge, supporting documents, past punishment awarded for similar offence, and his personal hearings and the provisions of CCA (CCA) Rules 1965 awarded the penalty of "Compulsory retirement from service". Which was also confirmed by the Appellate Authority. Therefore, he pleaded for dismissal of the OA.
10. We have heard the learned counsel for the applicant, Mr. M. Gnanasekar, and the learned counsel for the respondents, Mr. M. Kishore Kumar, SPC, perused the pleadings and the materials placed on record. We have also gone through the judgments relied upon by the respective parties.
11. It is seen that the applicant was issued with following Articles of Charge under Rule 14 of the CCS (CCA) Rules, 1965, vide Memorandum, dated, 19.03.2002:
7 OA /310/1758/2016 "Article I:
That the said Shri N. Murali, PA No.37188-S while functioning as UDC at HQ Admin Support Group at 413 Air Force Station, Tambaram, remained absent from duty wef 21 Sep 10 to 15 Nov 10 without permission an sanction of leave from the Competent Authority. Article-II That the said Shri N. Murali, PA No.37188-S while functioning as UDC at HQ Admin Support Group at 413 Air Force Station, Tambaram, became a habitual offender by remaining absent from duty on many occasions without permission/leave application. Article-III That the said Shri N. Murali, PA No.37188-S while functioning as UDC at HQ Admin Support Group at 413 Air Force Station, Tambaram, willfully not responded to the lawful communications sent to his residence. Article-IV That the said Shri N. Murali, PA No.37188-S while functioning as UDC at HQ Admin Support Group at 413 Air Force Station, Tambaram, submitted explanations to the earlier unauthorised absence wherein he had undertaken that would not commit such lapses of unauthorised absence in future. Whereas, he has not corrected his behaviour and continues to be absent without leave application/permission."
Thus, the applicant has by the above act, failed to maintain/exhibited lack of devotion to duty and thus committed an act unbecoming of Govt.
8 OA /310/1758/2016 servant and thereby violated Rule 3(1) a(iii) of CCS (Conduct) Rules, 1964.
12. The Disciplinary Authority appointed an Inquiry Officer to inquire into the charges. The Inquiry Officer, vide his report, dated 19.05.2011 gave a finding after considering the entire facts and circumstances of the case including the statement of defence submitted by the applicant, that the charges are proved by the material on record. The inquiry report was sent to the applicant to make his submission and vide his representation, dated 01.06.2011, he has stated that he has objection to the inquiry report.
13. As the applicant was indulged in repeating wilful and unauthorized absenteeism for long periods on different occasions, he was issued with administrative action and awarded Punishments. The same reads as follows:
Administrative Actions Sl No Absence No of days Opportunity rendered From To 1 02.06.2004 12.06.2004 11 Warning on 08.07.2008 2 09.06.2008 28.07.2008 50 Warning on 17.10.2008 3 08.12.2008 02.04.2009 116 Counselled on 03.04.2009 9 OA /310/1758/2016 Punishments Sl Absent No of CCS Punishment No days Rule awarded From To 1 28.01.2002 31.03.2002 63 Rule - 14 Withholding of One increment for one year without cumulative effect 2 01.10.2007 06.11.2007 37 Rule -16 Censure 3 12.09.2009 03.11.2009 93 Rule -16 Withholding of one increment for two years without cumulative effect
14. The Disciplinary Authority having fully considered all the relevant facts of the case as recorded by the Inquiry Officer found guilty of all the charges framed against him and came to the conclusion that he should be awarded the punishment of compulsory retirement from service.
15. The applicant has also made an appeal, dated 26.09.2011 wherein he has stated that he was under the belief that he would be awarded with a minimum punishment under Rule 14 and considering his pathetic condition, he requested for reinstatement in service. The Appellate Authority after considering all the submissions of the applicant confirmed the compulsory retirement from service imposed on the applicant with the observation that "the Board of Inquiry was conducted in accordance with the procedure laid down in CCS (CCA) Rules, 1965 and 10 OA /310/1758/2016 the applicant was given all opportunity available to him under the Rules. No intervention is called for in absence of any extenuating circumstances."
16. We find that in the instant case that the applicant's unauthorized absence are recurring in nature at regular intervals, the Disciplinary Authority after, considering the entire proceedings thoroughly on the basis of articles of charge, supporting documents, past punishments awarded for similar offence, and his personal hearings and under the provision of power vested under CCS (CCA) Rule 1965, has awarded a lenient penalty of "Compulsory retirement from Service" by an order, dated 19.08.2011, instead of dismissal from service which is the right punishment commensurate with the gravity of misconduct committed by the applicant especially when he himself has totally agreed with the Articles of charge framed against him. Further, mere agreeing to charges does not ipso facto mean that he would get minimum punishment. With regard to the contention of the applicant in the appeal that fellow employees were awarded with minimum punishment, such as reduction in increment/stage down for unauthorized absence, the Appellate Authority observed that parity with others being drawn by the appellant for misconduct on his part, does not stand to logic in view of the fact that two persons who are even similarly placed can distinguished because of rational differentia. In this regard, the relevant portion of judgment , dated 20.04.2022 of the Hon'ble 11 OA /310/1758/2016 Supreme Court in the case of Anil Kumar Upadhyay Vs. The Director General SSB and others (2022 LiveLaw (SC) 392, is extracted as hereunder:
"11. Even otherwise, merely because one of the employees was inflicted with a lesser punishment cannot be ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mine. There cannot be any negative discrimination. The punishment/penalty to be posed on a particular employees depends upon various factory, like the position of the employee in the department, role attributed to him and the nature of allegations against him................"
17. In the above cited decision, the Hon'ble Supreme Court also dealt with the scope of judicial review and interference of the courts in the matter of disciplinary proceedings and on the test of proportionality, few decisions of the Hon'ble Supreme Court are required to be referred to:
"1.In the case of Om Kumar Vs. Union of India (2001 (2) SCC 386, after considering the Wednesbury principles and the doctrine of proportionality, has observed and held that the question of quantum of punishment in disciplinary matters is primarily for the Disciplinary Authority and the jurisdiction of the High Court under Article 226 of the Constitution or of the Administrative Tribunals is limited and is coffined to the applicability of one or other of the well-known principles known as 'Wednesbury principles'.
In the Wednesbury case (1948 1 KB 223), it was observed that when a statute gave discretion to the administrator to take a decision, the scope of judicial review would remain limited. Lord Greene further said that interference was not permissible unless one or the 12 OA /310/1758/2016 other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered, or the decision was one which no reasonable person could have taken.
In the case of B.C. Chaturvedi Vs. Union of India (1995 (6) SCC 749, the Hon'ble Supreme Court in Para 18 observed and held as under:
"18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
In catena of judgements the Hon'ble Apex court has held that "when charge(s) of misconduct is proved in any enquiry the question of punishment to be imposed in a particular case is essentially the domain the departmental authorities and the courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority." In the 13 OA /310/1758/2016 instant case, the applicant was given reasonable opportunity in the inquiry proceedings. In the proceedings, while admitting the charges of unauthorised absence without prior permission, the applicant pleaded guilty to all the charges and the proceedings were conducted in accordance with Rule 14 (9) of the CCS (CCA) Rules, 1965. The applicant was also given reasonable opportunity in the inquiry proceedings. Accordingly, a conscious decision was taken by the Disciplinary Authority to impose the punishment of compulsory retirement commensurate with the misconduct and the same was also upheld by the Appellate Authority.
19. While it may not be relevant in view of the judgements discussed above, however, since a case had been sought to be made out by the applicant that similarly placed persons were awarded minimal punishment, the respondent was directed to file details in respect of action taken by the authorities in respect of similarly placed persons. From the details filed, vide letter dated 18.04.2023, issued by the second respondent office, we observe that Sri.Vinod, Cook, charged with similar offence was awarded "Compulsory Retirement" from service w.e.f 26.04.2013, while Sri.Ganesan, Lascar, was removed from service w.e.f 31.08.2012. Therefore, this argument of the applicant is also not borne out by facts.
14 OA /310/1758/2016
20. In the facts and circumstances of the case and the reasons stated above. we do not find any infirmity or illegality in the impugned order passed by the Disciplinary Authority as well as the Appellate Authority. The OA fails and the same deserves to be dismissed and is accordingly dismissed. No order as to costs.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
18 .09.2024
mas