Central Administrative Tribunal - Delhi
Manoj Kumar vs M/O Finance on 29 May, 2023
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Item No. 29 (C-3) O.A. No. 1489/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1489/2015
This the 29th day of May, 2023
Hon'ble Mr. Ashish Kalia, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Manoj Kumar
S/o. Ramchander, as Post Clerk,
Aged about 45 years,
Resident of Vill & P.O. Daulatabad,
Dist. Gurgaon, Haryana ...Applicant
(By Advocate : Mr. Anil Maurya for Ms. Sumita Hazarika)
VERSUS
1. Director General of Audit
(Central Expenditure)
IP Estate, New Delh - 110 002.
2. Comptroller and Auditor General of India
9, Deen Dayal Upadhyay Marg,
New Delhi-110 124. ....Respondents
(By Advocate : Mr. S. S. Hooda with Mr. Aayushman
Aeron)
ORDER (ORAL)
Hon'ble Mr. Ashish Kalia, Member (J) The applicant has filed this OA seeking the following main reliefs :-
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Item No. 29 (C-3) O.A. No. 1489/2015 "8(a) Call for the records of the case and quash and set aside the memorandum dated 11.05.2006 and 05.03.2007 charging the applicant of misconduct;
(b) Call for the records of the case and quash and set aside the report dated 31.12.2009 passed by the inquiry officer holding the applicant guilty of misconduct;
(c) Pass an order quashing and setting the Order No. 103 dated 18.06.2010 issued by the Disciplinary Authority dismissing the Applicant from service as well as the Order dated 31.03.2014 passed by the Revision Authority dismissing the Applicant's Revision Petition;
(d) Pass an order reinstating the Applicant in service with all consequential benefit."
2. The applicant was working as a Clerk under the respondents. For approximately three years i.e., from 04.09.2000 to 29.04.2003, he went on leave of different kinds on medical grounds. On joining the duty, he submitted medical and fitness certificates dated 29.04.2003 and 30.04.2003 respectively issued by Dr. T. P. Singh, CMO, CGHS, Sunder Vihar, New Delhi. After joining, he made a representation also to get his leave regularized and adjusted as per the rules.
3. As per learned counsel for the applicant after more than a year of joining of the applicant after availing the 3 Item No. 29 (C-3) O.A. No. 1489/2015 aforesaid leave, the respondents issued a memo dated 24.06.2004 to show cause as to why disciplinary action should not be initiated against him for unauthorized absence, to which the applicant replied on 02.07.2004 pointing out his illness and stated that no communication was made to him during the period of leave.
4. It is further stated that on 11.05.2006 the respondents issued a charge memo to the applicant on the ground of production of false medical certificate by him. However, the same was withdrawn without assigning any reason and a fresh charge memo dated 05.03.2007 for producing fabricated medical/fitness certificate in connivance with Dr. T. P. Singh was issued, after which an enquiry was initiated against him. Based on the enquiry report, the Disciplinary Authority passed an order of his dismissal from service with immediate effect.
5. Aggrieved, the applicant filed a revision petition on 18.06.2010 which was rejected by the Appellate Authority on 31.07.2014. Hence this OA. 4
Item No. 29 (C-3) O.A. No. 1489/2015
6. Notices were issued to the respondents who put appearance through counsel. He filed reply as well as written statement stating therein in paras 7, 8, 9 and 10 as under :-
"7. As per the comments of the Chief Medical Officer, Incharge CGHS Dispensary, Sunder Vihar on the medical certificate and fitness certificate (dated 29.04.2003 and 30.04.2003), revealed that they did not have any serial number or the token number which are normally mentioned by the doctors. The CMO has further stated that Dr. T. P. Singh, the doctor who has issued the certificates to the applicant, was absent on the dates the certificates were issued.
8. The CMO further states treatment to CGHS beneficiaries of other dispensaries are given for 1 to 2 days. The CMO further stated the treatment of Tuberculosis is usually given for 6-9 months, however the treatment might get prolonged if the compliance is poor. The procedure followed is that where a patient is diagnosed as TB case he is referred to specialist of referral hospital and the treatment is commenced by the specialist, although there are no written guidelines that a CGHS doctor cannot treat a TB patient.
9. That admittedly the Applicant was allotted CGHS Dispensary, Gurgaon. His obtaining a fitness and medical certificate from CGHS Dispensary, Sunder Vihar, Delhi, at a distance of 35 kms from Gurgaon, remains absolutely unexplained and raises a strong suspicion of malafide and falsity. That the Applicant was directed vide letter dated 27.07.2004 to submit original papers/prescriptions/test report relating to his medical treatment but the Applicant did not submit any such document which leads to a necessary inference that he had no such document in his possession and he had not taken, 5 Item No. 29 (C-3) O.A. No. 1489/2015 any such treatment from any hospital or any doctor.
10. The Applicant absented himself from 04.09.2000 to 29.04.2003 without making any application or request and without informing the Department about his illness if any. Even after joining back, he did not submit either reimbursement bills or record of his treatment in any OPD, no record of any tests having been conducted, no record of having purchased any medicine and no mention of the Hospital or the doctor from whom he had taken treatment if any. It has also not been brought on record if there was hospital record in either the CGHS Dispensary or any other private of government hospital to support his version that he was suffering from TB and had taken treatment."
Case of the respondents is that when the applicant was issued a call back memo on 14.11.2000 for attending a training, he refused to do so and the applicant then was dismissed from service on account of unauthorized absence for more than three years.
7. Heard Mr. Anil Maurya for Ms. Sumita Hazarika, learned counsel for the applicant and Mr. S. S. Hooda, learned counsel for the respondents. Perused the pleadings as well as appreciated the legal position. 6
Item No. 29 (C-3) O.A. No. 1489/2015
8. The short issue raised before this Tribunal is whether the punishment awarded to the applicant after holding the due process of inquiry is harsh or not?
9. Learned counsel for the applicant emphatically submitted that the applicant belongs to lower section of the society and working as Clerk who has been dismissed from service. He has initially taken leave for few days which was extended time and again.
10. To buttress his claim, learned counsel for the applicant relied upon a decision of the Hon'ble Apex Court in Chairman-cum-Managing Director, Coal India Limited and Others, vs. Ananta Saha and Others. (2011) 5 SCC 142, decided on 06.04.2011. The relevant portion of the said order reads as under :-
"30. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge-sheet. The law requires that the disciplinary authority should pass some positive 7 Item No. 29 (C-3) O.A. No. 1489/2015 order taking into consideration the material on record.
31. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi- judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the enquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the enquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab, Union of India v. H.C. Goel, Anil Kumar v. Presiding Officer and Union of India v. Prakash Kumar Tandon) Thus, the above referred order could not be sufficient to initiate any disciplinary proceedings.
32. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim sublato fundamento cadit opus is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
33. In Badrinath v. Govt. of T.N. this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. (See also State of Kerala v. Puthenkavu N.S.S. Karayogam7 and Kalabharati Advertising v. Hemant Vimalnath Narichania).8
Item No. 29 (C-3) O.A. No. 1489/2015
11. It is evident from the reply as well as from the averments of the counsel for respondents that they have enquired from the concerned Doctor who was on leave when the said medical certificate was issued. Contrary to this, the applicant's counsel submits that he has on enquiry confirmed that the said Doctor has issued the said certificate. He further submits that even the rules made applicable for his dismissal are not in existence anymore and prayed that his dismissal order be quashed.
12. As per the recent judgment of the Hon'ble Supreme Court in B.C. Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) on unauthorized absence, wherein it has been held that punishment for dismissal/removal is harsher and liable to be set aside and the matter may be remanded to the concerned disciplinary/appellate authority for lesser punishment. The excerpt of the said judgment reads as under :-
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion 9 Item No. 29 (C-3) O.A. No. 1489/2015 which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of 10 Item No. 29 (C-3) O.A. No. 1489/2015 the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".
13. It has further been observed that:
"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."
14. Learned counsel for the respondents submitted that the applicant has submitted forged certificate and forgery has been proved by the respondents.
15. We are aware of the facts and circumstances of the case. We are of the view that departmental proceedings where preponderance of probability has been taken into consideration and forgery is established, where expert opinion is required, various other factors are to be seen which normally is done in the judicial proceedings. But respondents have not chosen to file a criminal case in the 11 Item No. 29 (C-3) O.A. No. 1489/2015 instant case for the forgery which cannot be proved in the quasi judicial proceedings under the law. We are not convinced with the stand taken by the respondents. We hereby set aside the impugned orders dated 11.05.2006 and 05.03.2007 and direct the disciplinary authority / appellate authority to re-consider and to award some other lesser punishment in terms of the aforesaid Hon'ble Apex Court decisions in B. C. Chaturvedi vs. UOI & Others as well as Chairman-cum-Managing Director, Coal India Limited and Others, vs. Ananta Saha and Others (supra).
16. The OA stands allowed accordingly.
There shall be no order as to costs.
(Dr. A. S. Khati) (Ashish Kalia) Member (A) Member (J) /Mbt/