Central Administrative Tribunal - Delhi
202 vs Union Of India on 17 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 4095/2011 New Delhi this the 17th day of July, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Smt. Madhubala Saini, W/o Shri Ayan Kumar Choudhary, Occupation TGT (Eng.), R/o 1301, T/12, Valley View Estate, Gurgaon Faridabad Road, Gurgaon-122003 Presently residing at: 11202, Bay Drive, Danvers, MA, USA 01923. Applicant. (By Advocate Shri Ashok Mishra with Shri Sunil Verma) Versus 1. Union of India Ministry of Human Resources Development, Through the Secretary, Shastri Bhawan, New Delhi-110001. 2. Kendriya Vidyalaya Sangathan Through the Commissioner, JNU Campus, New Mehrauli Road, New Delhi-110067 3. Assistant Commissioner, Kendriya Vidyalaya Sangathan (Delhi Region), 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. 4. Joint Commissioner (Admn.) & Appellate Authority (Vigilance Section) 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016. Respondents. (By Advocate Shri U.N. Singh) O R D E R (ORAL)
Shri G. George Paracken:
The applicant who has been working as TGT (English) in Kendriya Vidyalaya Sangathan (`KVS for short) is aggrieved by the impugned order No. F. (794)19044/2010/KVS/DR/13887-89 dated 13/19.04.2010 passed by the Respondent No. 3. According to the said order, she remained absent from duty from 23.01.2010 till date without sanctioned leave and, therefore, she was served with notice under sub-clause (3) of Clause (d) of Article 81 of Education Code for Kendriya Vidyalayas communicating the factum of her voluntary abandonment of service and the provisional loss, vide letter dated 16.03.2010. She was given an opportunity to show cause as to why the aforesaid order of provisional loss of lien should not be confirmed. Further, taking into consideration her representation dated 25.03.2010 and all other relevant facts and circumstances of the case, the competent authority came to the conclusion that she deemed to have voluntarily abandoned her service and confirmed the loss of her lien on the post of TGT (Eng.). Thus, she was removed from the service of the KVS with effect from the date of her remaining absent from duties i.e. with effect from 23.01.2010. The applicant filed an appeal dated 15.05.2010 against the aforesaid order but the same was rejected by the appellate authority vide the impugned order No. F.19063/10/2010-KVS (Vig.) dated 14.12.2010. The applicant has challenged both the aforesaid orders in this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985.
2. According to the applicant, while functioning as TGT (Eng.), she applied for issuance of NOC for going abroad vide application dated 08.01.2008 and grant of Extra Ordinary Leave (for short `EOL) for two years for the period from 22.01.2008 to 22.01.2010. The respondent No. 3, vide order dated 15.01.2008, granted her both requests. During the said period, she got married on 25.01.2008 and left for Boston, USA along with her husband who has been working there after he was transferred from his Gurgaon (India) branch office in February, 2007. During her stay there, she suffered from certain gynaecological problems due to late marriage. She was also unable to have baby due to frequent miscarriages (three IVF failures). She was, therefore, undergoing treatment from IVF expert in USA and due to her critical health condition, she was continued to her treatment there. Therefore, on 23.12.2009 i.e. before expiry of the leave already granted to her, she sent an application to the respondents for extension of her leave by granting EOL for the period from 23.01.2010 to 23.01.2013 with permission to stay abroad in connection with her treatment. However, the respondent No. 3 has issued Memorandum No. F.19044/2010/11/Admn.-KVS (DR)/1062-63 dated 11.01.2010 at her address in U.S.A. calling upon her to report back for duty within 15 days from the date of receipt of the same with the further stipulation that if she fails to comply with the aforesaid direction, action will be taken against her as per the rules. According to her, the said respondent was well aware that she was at that time residing at Gurgaon. She came to know about the aforesaid Memorandum only when she had telephonically contacted the said Respondent from Calcutta. Thereafter, she met the Respondent No. 3 on 04.02.2010 and submitted another application for extension of EOL on medical grounds but on 16.03.2010, the respondents passed an order of provisional loss of lien on the post held by her and issued her a show cause notice under the provision of Article 81 (D) (3) of the Education Code asking her as to why the aforesaid order about provisional loss of lien should not be confirmed. She submitted her representation dated 25.03.2010 along with a copy of medical certificate dated 24.03.2010 issued by Mandy Kaur, MD wherein it has been stated that she was her the primary care physician and she referred her to an infertility specialist whom she was seeing regularly. It was also stated in the said certificate that the applicant had already three IVF failures and she needed to continue with the infertility clinic because of her age. However, the respondent No. 3 did not find the aforesaid representation of the applicant satisfactory and finally removed her from service on 13.04.2010. Aggrieved by the aforesaid order dated 13.04.2010, the applicant has preferred the departmental appeal on 15.05.2010 but the same was also dismissed by the Respondent No. 4 vide order dated 14.12.2010.
3. The applicant has challenged the aforesaid orders of the respondents in this O.A on the ground that the respondents 3 and 4 have not considered her case sympathetically. She has also stated what is contemplated in clause (D) of Article 81 of Chapter VIII of the Education Code for Kendriya Vidyalayas is that an employee who has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his/her lien on his/her post unless he returns within 15 days of the commencement of the absence or the expiry of leave originally granted or subsequently extended. However, in her case, the appointing authority did not appreciate the fact that her absence from duty or her inability to return on the expiry of the leave was for reasons beyond her control. She has also submitted that she had put in 14 years of service and same could not have been dispensed with except after inquiry consistent with the principles of natural justice.
4. The applicant has also alleged discrimination inasmuch as in another similar case of one Babita Sharma who went abroad on 20.05.2007, even though she did not report for duty after a period of about three years, she was allowed to be continued on the strength of the respondents. Again, she has contended that the loss of lien is, in fact, a major penalty and it comes under the sub-clause (viii) of Rule 11 of the CCS (CCA) Rules, 1965 and, therefore, attracts Rule 14 of the said Rules which provide that no major penalty can be imposed without holding an inquiry and there was no reason for the respondents to dispense with the inquiry in her case.
5. The respondents in their reply have submitted that the applicants request for issuance of NOC for going abroad and grant of two years leave w.e.f. 22.01.2008 to 22.01.2010 on account of her marriage made vide her representation dated 08.01.2008 was allowed by them vide their order dated 15.01.2008 with the specific condition that she shall return to her duty immediately after the expiry of the leave sanctioned to her and in case she fails to return to her duty after the expiry of the leave, the case of extending her leave shall be decided on merits of the case strictly in accordance with the Leave Rules. However, instead of reporting back to her duty on expiry of leave, she applied for extension of EOL from 21.01.2010 to 23.01.2013 vide representation dated 08.01.2010. Due to her long absence, studies of students of senior classes were badly affected. Therefore, the request of the applicant for extension of EOL on private affairs for further one year was rejected by the competent leave sanctioning authority after due consideration and she was informed accordingly vide Memorandum dated 11.01.2010. She was further directed to report for duty within 15 days from the date of receipt of the Memorandum. She was also informed that her failure to report back to her duty will attract action against her as per rules. Since the applicant failed to report back to her duty, a show cause notice under the provisions of Article 81-D of Education Code for Kendriya Vidyalays was issued asking her to submit the representation as to why order of provisional loss of lien held by her on the post of TGT (Eng.) should not be confirmed. However, vide representation dated 25.03.2010, the applicant submitted a Medical Certificate dated 24.03.2010 issued by Mandy Kaur, MD in which it has been stated that she needs to continue with infertility clinic but she was neither declared unfit to resume duty nor she was advised for any medical treatment for a particular period etc. as required under the rules. Further, her request for extension of EOL on medical ground for one more year was not convincing to the leave sanctioning authority as she was already on long leave right from the date of her marriage. The reason given by her for her long absence was not found justifiable as the treatment for infertility which the applicant stated to have been undergoing is very much available in Delhi and there was no likelihood of her reporting back for her duty in near future. As such, she was removed from service w.e.f. 23.01.2010 under the provisions of Article 81-D of Education Code for Kendriya Vidyalayas by the appointing authority vide order dated 13/19.04.2010.
6. The learned counsel for the respondents has also relied upon the judgment of the Honble High Court of Delhi in Civil Writ Petition No. 4485/2002 Mrs. Prem Juneja Vs. Union of India & Ors. decided on 01.11.2002 as upheld by the Apex Court in Special Leave to Appeal (Civil) No. 12236/2003. The relevant parts of the aforesaid judgment of the High Court are as under:
A reading of the aforesaid Article 81(d) leaves no manner of doubt that it does not suffer from any of the vices on the basis of which it has been attacked by the learned counsel for the petitioner. We are not impressed by the submission of the learned counsel for the petitioner that the aforesaid Article 81 (d) of the Education Code is violative of the equality clause. There is nothing in Article 81 (d) of the Education Code which makes it unjust, unfair and unreasonable. It is meant to deal with an unwarranted situation of absentism. Absentism is bane of public service. The erring employees have been taking advantage of the procedure and mocking at the system. Unauthorized absentism in offices is rampant. There are instances galore where the employees remained absent for several years and yet were able to successfully challenge the orders of their terminations. This has given undue advantage to the erring employees. They not only were able to get the orders of termination quashed or set aside, but they were also reinstated with full back wages. The situation cannot be followed to prevail. The indiscipline must be curbed in order to infuse efficiency and discipline in the services. It was possibly in this view of the matter that Article 81 (d) of the Education Code was framed.
Article 81 (d) clearly makes a provision for providing an opportunity to an employee to show cause against the provisional view of the concerned authority that the employee has lost his or her lien on the post on the ground of his unauthorized absence from duty. Such an employee who remained absent, can render his explanation. In case the Disciplinary Authority rejects the explanation and passes an order confirming loss of lien on the post held by him or her and removing him from service, he or she can file an appeal before the Appellate Authority. The Supreme Court in Aligarh Muslim University and others Vs. Mansoor Ali Khan 2000 (6) SCALE 125 while dealing with Rule 5(8)(i) of the Aligarh Muslim University Revised Leave Rules, 1969, which rule is identical to Article 81(d) of the Education Code held as follows:
11. It will be seen that Rule 5(8)(i) applies to an employee who absents himself from duty without having previously obtained leave or where he has failed to return to his duties on the expiry of leave without having previously obtained further leave. Then Rule 5(8)(i) refers to the manner in which the employee is to be given an opportunity. If the Appointing Authority regards the explanation as not satisfactory, the employee concerned shall be deemed to have vacated his post, without notice, from the date of absence without leave. In the context of Rule 10 of the 1972 Rules, which deems vacation of post if the absence was 5 years, it must follow that the above Rule 5(8)(i) applies to absence for a period less than 5 years.
12. Rule 5(8)(ii) deals with a different situation. It relates to a case where such an officer is permitted to rejoin duty. It says that if he is so permitted, he will be entitled to no leave allowance or salary for the period of such absence and such period shall be debited against his leave account as leave without pay. The rule says that these consequences will not, however, follow if his leave is extended by the authority empowered to grant leave. Then in its latter part, Rule 5(8)(ii) refers to another situation enabling disciplinary action to be taken treating unauthorised absence as misconduct. If a person has been absent without leave being sanctioned, he could be proceeded against for misconduct.
13. These are the different situations in which Rule 5(8)(i) and (ii) apply. Point 1 is decided accordingly.
Point 2 :
14. Rule 10(C)(1)(ii) of the 1972 Rules reads as follows :
"Rule 10 : Employee absent from duty :
(a) to (b) . . . . . . . . . . . . . . . . . . . . . . .
(c) (i) No permanent employee shall be granted leave of any kind for a continuous period exceeding five years;
(ii) When an employee does not resume duty after remaining on leave for a continuous period of five years, or whether an employee after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension for any period which together with the period of the leave granted to him exceeds five years, he shall, unless the Executive Council in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned and shall accordingly cease to be in the University service."
It will be seen that Rule 10 deals with a different aspect. Now Rule 10(C)(i) states that no permanent employee shall be granted leave of any kind for a continuous period of more than 5 years. However, Rule 10(C)(ii) states that when an employee does not resume duty after remaining on leave for a continuous period of 5 years, or where an employee - after the expiry of his leave - remains absent from duty (otherwise than on foreign service or on account of suspension) for any period which together with the period of the leave granted to him exceeds 5 years, - he shall, (unless the Executive Council in view of the exceptional circumstances of the case otherwise determine), be deemed to have resigned and shall accordingly cease to be in the University service. This is the purport of Rule 10(C). Point 2 is decided accordingly. Thus, it is clear from the aforesaid decision that the Supreme Court did not find fault with the action of the University in resorting to Rule 5(8)(i) of the Aligarh Muslim University Revised Leave Rules, 1969 where an employee failed to resume duty after the expiry of leave granted to him. He was deemed to have vacated his post from the date of his absence without leave by the University. Neither the said rule nor the action of the University thereunder was held to be violative of the principles of natural justice or any of the constitutional function. Taking cue from the aforesaid judgment of the Supreme Court, it seems to us that time has come when effect must be given to rules like Article 81(d) of the Education Code so that the malady of absentism is remedied. Since Article 81(d) of the Education Code provides an opportunity to the employee to furnish his/her explanation in regard to the provisional view of the competent authority that the employee has lost his/her lien on the post on account of his/her absence from duty and a post decisional hearing in the form of an appeal is also provided, the challenge based on the violation of principles of natural justice does not hold water and stands neutralised.
It is noteworthy that the Supreme Court in Aligarh Muslim Universitys case (supra) also rejected the challenge to the action taken against the appellant therein on the ground that no prejudice was caused to him for want of notice under Rule 5(8)(i) of the Aligarh Muslim University revised Leave Rules, 1969. The question of prejudice in the instant case does not arise as the petitioner has not given any worthwhile explanation for her absence from duty. An opportunity was given to her by the Competent Authority to furnish her explanation by way of show cause notice under Article 81(d) of the Education Code which opportunity was availed of. The explanation of the petitioner for her absence that she had family problems was considered by the Joint Commissioner before passing the order dated May 4, 2001. Any further opportunity to represent her case will not advance the principles of natural justice.
It needs to be pointed out that the petitioner was absent from duty for a long period of time. The Joint Commissioner, KVS took a fair view of the matter on consideration of the representation of the petitioner in reply to the show cause notice. This is evident from the following observations of the Joint Commissioner, KVS contained in his order dated May 4, 2001:
AND WHEREAS on consideration of the said representation being a lady, her concern for the career of children could be appreciated during the examination days or a little earlier, but her unauthorized absence w.e.f. 4.10.2000 does not have any genuine grounds. We do not find any violation of the principles of natural justice warranting our interference.
In view of the aforesaid discussion, we do not find any merit in the writ petition. Accordingly, the same is dismissed.
7. We have heard the learned counsel for the applicant Shri Ashok Mishra with Shri Sunil Verma and the learned counsel for the respondents Shri U.N. Singh. It is seen that the applicant was granted Extra Ordinary Leave of two years for her marriage and granted NOC to go abroad to USA to join her husband who was working there. As a responsible teacher, after two years of stay in USA, she ought to have returned to her duty. On the other hand, the applicant tried to extend her leave for another spell of two years on medical ground supported by certificate issued to her wherein it has been stated that she needs to continue with the infertility clinic. The respondents have considered her case and found that she was not declared unfit to resume duty. She was also not advised any medical treatment for any particular period. The respondents have held that the treatment which the applicant was undergoing in USA is very much available in Delhi also. Therefore, the competent authority was of the view that there was no likelihood of her reporting back to duty in the near future. They have also considered the plight of the students who are the victims of such long absence of the applicant. It is seen that the respondents have introduced the provision of Article 81-D of Education Code for Kendriya Vidyalayas to deal with such situations. It says that if an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he/she shall provisionally lose lien on the post unless he/she returns within fifteen calendar days of the commencement of the absence or expiry of leave originally granted or subsequently extended, as the case may be. Further, it says that such extension is permissible only if the appointing authority is satisfied that his/her absence or his/her inability to return on the expiry of the leave, as the case may be, was for reasons beyond his control. In this case, it is seen that the applicant was away on leave for two years continuously. Even after that, she was seeking extension of leave for another two years on the ground that she had to undergo certain treatment for infertility. The appointing authority, for the reasons recorded by it, is not satisfied with the explanation given by the applicant for further extension of leave. Therefore, the respondents have removed the applicant from service after following the prescribed procedure. In our considered view, there is absolutely no violation of the aforesaid rules or any principle of natural justice as alleged by the applicant. The applicants contention that she was discriminated by the respondents against another employee one Babita Sharma who was allowed to remain on the strength of the respondent KVS even after she remained absent for three years and overstayed abroad cannot also be accepted as the protection under Article 14 of the Constitution is not a negative concept.
8. In the above facts and circumstances of the case, we find no merit in this OA and accordingly the same is dismissed. There shall be no order as to costs.
(DR. VEENA CHHOTRAY) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) `SRD