Central Administrative Tribunal - Kolkata
Sanjay Pant vs Admin on 11 January, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA 0.A/350/920/2022 Date of Order: 11.01.2023 Coram: Hon'ble Mr.Jayesh V. Bhairavia, Judicial Member Hon' ble Mr.Suchitto Kumar Das, Administrative Member Sanjay Pant, s/o late HariShanker Pant, aged about 59 years (date of birth 23.02.1963), presently working as Statistical Officer, in Directorate of Agriculture, A&N Administration, Port Blair, present payRs. 85,100/- in Pay Level 9, presently residing at South Point, P.O. - Shadipur, Port Blair, PIN- 744101, permanently residing at B-9/4, Balda Colony, Ist Lane, Nishatganj, Lucknow, UP., PIN-226 007. eseaees Applicant - VERSUS- 1, Union Territory of Andaman & Nicobar Administration, service through the Chief Secretary, Andaman & Nicobar Administration, Secretariat, Secretariat building, Port Blair, PIN -- 744 101. 2. Lt. Governor (Administrator), Andaman & Nicobar Islands, Raj Niwas, Port Blair, PIN-744 °01 3. Chief Secretary, Andaman & Nicobar Administretion, Secretariat, Secretariat building, Port Blair, PIN -744101. 4, Secretary (Statistics), Andaman & Nicobar Administration, Na Secretariat building, Port Blair, PIN-744 101. i 5. Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi, PIN-110069. 6. Director, Directorate of Animal Husbandry & Veterinary Services, Megapode Road, Port Blair, PIN-744 101. 7. Director, Directorate of Economics & Statistics, Quarry Hill, Port Blair, PIN-744 101. 8. Director, Directorate of Agriculture, A&N Administration, Haddo, Port Blair, PIN-744 102. wesc RESpondents For the Applicant(s): Mr. B.R. Das, counsel Mr. K.K. Ghosh, counsel For the Respondent(s): Mr. B.B. Chatterjee, counsel Mr. A.K. Chattapadhyay, counsel ORDER (Oral)
Jayesh V. Bhairavia, Judicial Member The applicant has preferred this O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-
"h. Recall the order Al and amend/modify insofar as it sets aside the vigilance clearance allowed by Al2 so as to have the petitioner a clean slate for all intents and purpose;
if Rescind/recall/withdraw and/or drop the charge in Article-I in the chargememoAnnexure-A2 in due consideration of his written statement dated 01.04.2022 apart from other legal considerations;
If, Direct the petitioner to be promoted as against the post of Research Officer in Level 10 (Rs. 56,100-1,77,500/-) forthwith in the Directorate of Economics & Statistics under A&N Administration in accord with the approval of UPSC (Annexure-A 3), IV. Regularise the period of non- performance of duties from 06.10.2020 to 05.04.2021 as recommended by the Department videAnnexure-A4 by granting leave as might be due and admissible to the petitioner.
V. Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed in (I) to (IV), above.
VI Pass such other order/orders and/or directiowdirections as deemed fit and proper.
VIL Costs."
2. Learned Counsel for the applicant would submit at the outset that he wants to press only the relief prayed in Para (I) and (II) above. Brief facts of this case as submitted by the applicant are as under:-
2.1 The applicant was appointed as Statistical Assistant in the Directorate of Economics and Statistics, Andaman & Nicobar Administration on 08.04.1987. On being selected through UPSC, New Delhi, he joined the post of Senior Scientific Assistant (Statistics) in the Bureau of Police Research and Development under the Ministry of Home Affairs, New Delhi on 25.08.1998.
He was promoted to the post of Senior Investigator on proforma basis by the Andaman and Nicobar (hereinafter referred to as A&N) Administration on 01.12.2003. On 02.06.2004 the A&N Administration issued a "No objection" certificate in favour of the applicant allowing him to remain in the Bureau of Police Research and Development till completion of 7 year term i.e. upto 27.05.2005, 2.2. The applicant joined A&N Administration in the Directorate of Economics and Statistics after being relieved from the Bureau of Police Research and Development, New Delhi on 17.11.2008. He was transferred and posted under the Resident Commissioner at 2.3 2.4 New Delhi as Senior Investigator on 13.01.2014. On 14.03.2014 the applicant was posted in the Office of the Election Commissioner (UTs) at New Delhi in the same capacity as Senior Investigator by the Directorate of Economics & Statistics, A&N Administration. Both the orders dated 13.01.2014 and 14.03.2014 are annexed as Annexure A/5 to the O.A. On 01.07.2015 the applicant was promoted to the post of Statistical Officer by the A&N Administration.
The applicant submitted a representation dated 13.07.2020 (Annexure A/6) to the ECI (UTs) to relieve him so that he can join the A&N Administration at Port Blair. On 10.09.2020 the A&N Administration informed the Office of the Election Commissioner (UTs), New Delhi that the applicant was under the zone of consideration for promotion to the post of Research Officer as there is existing vacancy and requested the ECI for UTs to relieve the petitioner.
The ECI (UTs) issued order on 01.10.2020 (Annexure A/7) relieving the applicant from the Office of ECI (UTs) at New Delhi w.e.f. 05.10.2020 and directed the applicant to report for duty at the Directorate of Animal Husbandry & Veterinary, A&N Administration.
The applicant wrote a letter dated 06.10.2020(Annexure A/7/1) to the Director, Directorate of Animal Husbandry & Veterinary Services (AH& VS)at Port Blair informing that he was proceeding from New Delhi to Lucknow on 06.10.2020 and thereafter would proceed from Lucknow to Port Blair. He sent another letter dated iy Wo 17.10.2020 (Annexure A/8) to the Director, Directorate of AH&VS, A&N Administration stating about his self and father's medical treatment at Lucknow and sufferingof his entire family. He had also mentioned that he would submit E.L. for the entire period when he was unable to attend office at Port Blair under compelling circumstances.
2.55 On 21.12.2020 (Annexure A/9) the applicant submitted an application to the Chief Secretary, A&N Administration seeking voluntary retirement from service. The Secretary, Economics and Statistics Department on 16.03.2021 issued a Memo directing the applicant to report for duty in A&N Administration within 10 days. The applicant vide letter dated 17.03.2021 informed the Chief Secretary with copy to the Lt. Governor & Others explaining the reasons for his inability to join the A&N Administration at Port Blair on requisite time after getting relieved from the Office of EC(UTs).
2.6 On 05.04.2021 the applicant reported for duty in the Directorate of Agriculture, A&N Administration. Again on 09.07.2021(Annexure A/11) the applicant prefers an application to the Lieutenant Governor seeking voluntary retirement from service w.e.f. 10.10.2021. The Vigilance Department issued a Vigilance Clearance Certificate on 02.09.2021 (Annexure A/12) wherein they have categorically mentioned that neither any criminal proceeding nor any disciplinary proceeding is contemplated/pending against the applicant .
~~ 6 2.7 The Director, Directorate of Economics and Statistics informed the applicant on 08.10.2021(Annexure A/1) that the competent authority has not accepted the request for voluntary retirement from service and the Vigilance Section, Secretariat had withdrawn the vigilance clearance. Thereafter the Lieutenant Governor issued a charge memo dated 14.03.2022 (Annexure A/2) against the applicant for his unauthorized absence w.e.f. 06.10.2020 to 04.04.2021 (181 days) which was stated to be received by the applicant on 24.03.2022. The applicant submitted his written statement of defence against the charge memo on 01.04.2022 (Annexure A/13).
The applicant, therefore, has approached this Tribunal seeking the aforesaid reliefsand prayed to save him from prolonged suffering and distress.
3. The respondents have filed a written reply refuting the claim of the app-icant. The respondents mainly submitted that leave cannot be claimed as a matter of right. The applicant did not join service despite repeated opportunities were given to him and now he has come to this Tribunal praying for regularization of his unauthorized absence, which is not maintainable as per rules. Therefore, the O.A.is misconceived, misleading, vague and not maintainable under the rules.
4. The core submissions made by the respondents' counsel are as follows:-
4.1 The applicant, Shri Sanjay Pant, §.O. [attached to the Directorate of Animal Husbandry and Veterinary Services (AH&VS), Port Blair] worked on diverted capacity at O/O the Election Commission of UTs, New Delhi since 2017 and was transferred if 4.2 4.3 and posted in O/O the Directorate of Agriculture vide Order No.135 dated 11.08.2020. He was relieved therefrom on 05.10.2020(AN) with a direction to report for duty to the Director of AH & VS, Port Blair vide Order No.6 dated 01.10.2020. The applicant informed vide letter dated 06.10.2020 to the Director (AH&VS) that he is proceeding to Lucknow to take his family to proceed to Port Blair and mentioned that his father is suffering from hypertension and high fever.
As the applicant did not report for duty to UT Administration even after lapse of 3 months, a memo was issued to Shri Sanjay Pant, Statistical Officer on 22.12.2020 with a direction to report for duty in A&N Administration, Port Blair within 10 days from the receipt. Vide Memo dated 22.01.2021 he was once again directed to report for duty in the A&N Administration immediately. Instead of reporting for duty he informed about his inability to join A&N Administration due to his family conditions and requested to accept his VRS application dated 21.12.2020. Thereafter he prayed for 3 weeks' time to report to A&N Administration vide letter dated 08.03.2021.
The applicant's name was recommended for promotion to the post of Research Officer (Group A) in Level-10 through DPC during the month of January, 2021. The Competent Authority observed that the matter regarding his unauthorized absence/overstay is pending for decision in which disciplinary aspect is involved which needs to be resolved first before any further proposal.
ap can ms 4.4 4.5 Accordingly a memo dated 16.03.2021 was issued to Shri Sanjay Pant with a direction to report for duty in A&N Administration within 10 days from receipt of the notice, failing which, necessary disciplinary action as deemed fit under rules should be initiated against him. Instead of obeying the said order, again the applicant submitted a letter with a request to withdraw his VRS application dated 21.12.2020 and reported for duty on 05.04.2021 i.e. much after the 10 days' period as directed vide memo dated 16.03.2021.
After joining service the applicant sought for regularization of the absence period by granting leave with explanation vide letter dated 02.06.2021 addressed to the Director of Agriculture and again submitted notice for VRS dated 09.07.2021 for acceptance with effect from 10.10.2021.
However, vigilance clearance was withdrawn as a disciplinary action proposed to be initiated against the applicant and his prayer for VRS from 10.10.2021 was rejected in view of the withdrawal of the vigilance clearance vide Memo dated 08.10.2021 through the Director of Agriculture.
The applicant is a habitual unauthorized absentee. On an earlier occasion he remained unauthorisedly absent from duties w.e.f. 15.08.2004 to 16.11.2008 (1555days) for which disciplinary action was taken against him. He had filed O.A.No.66/AN/2007 before this Tribunal which was disposed of on 29.09.2008 with a direction to conduct a fresh enquiry against the applicant and to regularize the period of absence by granting EOL without any ml 4.6 4.7 break in service. Thereafter fresh enquiry was conducted against the applicant. On completion of the disciplinary proceeding, the Appointing/Disciplinary Authority imposed upon the applicant a penalty of withholding of increment for a period of three years without cumulative effect vide Order No.2272 dated 22.06.2012 from July 2012 onwards, which was communicated vide order dated 23.08.2012( Page 36 of Reply). His promotion to the post of Statistical Officer (Group B Gazetted) was also deferred during the currency of the penalty period.
The respondents submitted that at the time of rejecting the VRS application of the applicant the Appointing /Competent Authority directed that violation of conduct rules should be addressed by issuing show cause notice. Again a show cause notice for his unauthorized absence from duty w.e.f. 06.10.2020 to 04.04.2021 was issued to the applicant on 12.11.2021. He submitted his reply to the same .on 22.11.2021 which was duly forwarded to the Assistant Director(Administration), Directorate of Agriculture vide letter dated 01.12.2021 which was received on 03.12.2021.
On earlier occasior. the applicant remained on unauthorized absence from duty w.e.f. 15.08.2004 to 16.11.2008 (1555 days) after his relieving from the deputation post in the Bureau of Police Research and Development, MHA, GOI and a departmental enquiry also conducted against him and penalty of withholding of increment for a period of three years was imposed upon him.
The competent authority, therefore, opined that the applicant was a habitual unauthorized absentee for prolonged ay)?
es 10.
period from duty, therefore, his case deserved to be investigated by initiating departmental proceeding under Rule 14 of the Central Civil Service (Classification, Contro: and Appeal) Rules [CCS(CCA)]Rules, 1965 for his unauthorized absence from duty for 181 days w.e.f. 06.10.2020 to 04.04.2021.
4.8 As per direction of the Hon'ble Lt. Governor a charge memorandum dated 14.03.2022 was issued against the applicant under Rule 14 of CCS(CCA) Rules, 1965 for his unauthorized absence from duty w.e.f. 06.10.2020 to 04.04.2021. The applicant submitted reply to the charge memo on 01.04.2022 through Assistant Director (Agri) vide letter dated 18.04.2022. Reply of the applicant with other requisite documents was forwarded to the Vigilance Section, Secretariat on 27.04.2022 for further processing of disciplinary proceeding against him.
4.9 The respondents submitted that the applicant exhibited lack of absolute integrity, devotion to duty by not joining office despite innumerable opportunities given to him, thereby, acting in a manner unbecoming of a Government servant contravening Rule 3(1)@)Gi) and (iii) of Central Civil Services (Conduct) Rules, 1964. Hence, the respondents have rightly taken disciplinary action against him and he is not entitlec to the reliefs claimed in this O.A. The representation filed by the applicant before the disciplinary authority against the charge memorandum is pending for consideration.
5. The applicant has filed rejoinder to the reply of the respondents reiterating the same as mentioned in the O.A. Additionally, he has raised a jy oO 11 point that it was during the peak of the pandemic situation when he remained absent from duty i.e. from 06.10.2020 to 04.04.2021, therefore, the said period should not be treated as unauthorized absence from duty in view of the pandemic situation and also for the reason that he informed the competent authorities about his absence from time to time as explained in detail in his representation dated 1.4.2022. However, the said representation submitted before the disciplinary authority has not been considered til] date.
6. Heard Learned Counsel for both sides and perused the materials placed on record,
7. As per prayer of the applicant only the reliefs claimed under Para (I) and (II) are taken into consideration.
In Relief (1) the applicant has prayed for amendment/modification/setting aside of the order dated 08.10.2021(Annexure A/1) whereby his VRS from 10.10.2021 was rejected in view of the withdrawal of the vigilance clearance vide letter dated 07.10.2021.
In Relief (II) he has prayed for cancellation of the Article-I of the charge memo dated 14.03.2022(Annexure A/2) wherein it was alleged that the applicant exhibited lack of absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant contravening the provisions of Rule 3()Gi)& (iii) of CCS (Conduct) Rules, 1964 by remaining absent from duty unauthorisedly for 181 days w.e.f. 06.10.2020 to 04.04.2021 in due consideration of his written statement dated 01.04.2022 against the charge memo.
8. The scope of judicial review by the courts or Tribunals in disciplinary matters is very limited as per a catena of decisions of Hon'ble Apex Court.
pp:
12The Tribunal cannot interfere in che decision of the respondent authorities in the disciplinary matters until and unless there is any malafide exercise of power, The duty of the courts or tribunals is only to see whether the delinquent has been given fair opportunity and whether there is any violation of the principles of natural justice while conducting the disciplinary proceeding.
In B.C. Chaturvedi v. Union of India & Others, (1995) 6 SCC 749, the Hon'ble Apex Court on the scope of judicial review has held as under:
"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 which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/ Tribunal is concerned to determine whether the inquiry was held by a Competent Officer or whether the inquiry was held by a Competent Officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power ard 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 it its power of judicial review does not act as Appellate Authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in @ manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of inquiry or 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."
in Moni Shankar vs. Union of India and Another [(2008) 3 SCC 484], the Hon'ble Supreme Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as_to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive_at its own conclusion on the premise that the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely 13
- preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not_been satisfied, the Tribunal _was_within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
9. In view of the aforesaid dictum of the Hon'ble Supreme Court, it would not be proper on the part of the Tribunal to interfere with the pending disciplinary proceeding started against the applicant for his unauthorised absence from duty. However, at the same time, this Tribunal cannot ignore the undisputed fact that after receipt of charge memorandum the applicant has submitted his detailed representation dated 1.4.2022 wherein he had explained the unavoidable circumstances for him to attend duty and the difficulties faced by him during COVID pandemic and had requested the authorities to withdraw / drop the charges of his unauthorized absence. The said representation is pending before the disciplinary authority till date. Not only that, this Tribunal vide order dated 16.6.2022 had directed the respondents to dispose of the representation of the applicant dated 1.4.2022. It appears that the respondents have not taken any decision on the representation of the applicant till date though they were well aware that he would retire on 28.02.2023. It is not understood why the respondents have not taken any step to decide the representation of the applicant as per order of this Tribunal dated 16.06.2022 and conclude the disciplinary proceeding as per rules before his retirement. Therefore, the contention and apprehension raised by the Ld. Counsel for the applicant that the applicant will not receive his terminal benefits upon his retirement until and unless the disciplinary case is decided finally. Had the respondents taken appropriate steps to decide the representation and conclude the disciplinary proceeding against the applicant, such inconvenience/suffering caused to the applicant could have been avoided. We find substantial force in pr.
the arguments advanced by Ld. Counsel for the applicant.
1410. In view of the aforesaid discussion, the respondents are directed to consider the representation of the applicant dated 01.04.2022 keeping in view the aforesaid observations and pass a reasoned and speaking order expeditiously not later than a period of 15 days from the date of receipt of a copy of this order. In case the decision goes in favour of the applicant and he is exonerated from the charges, the respondents shall be entitled to all his retiral dues immediately thereafter.
11. Accordingly the O.A. stands disposed of. No order as to cost.
= ae (Suchitto Kumar Das ) (Jayesh V. Bhairavia) Administrative Member Judicial Member sb