Central Administrative Tribunal - Delhi
Ms. Nisha Priya Bhatia vs Union Of India on 28 April, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH, NEW DELHI O.A. No.1967/2010 With OA No. 1665/2010 New Delhi, this the 28th day of April, 2011. HONBLE MRS. MEERA CHHIBBER, MEMBER (J) HONBLE DR. A.K. MISHRA, MEMBER (A) OA No. 1967/2010 Ms. Nisha Priya Bhatia D/o Shri T.N. Bhatia R/o I-263, Naraina, New Delhi-110028. .Applicant OA No. 1665/2010 Ms. Nisha Priya Bhatia D/o Shri T.N. Bhatia R/o I-263, Naraina, New Delhi-110028. .Applicant Applicant in person. Versus Union of India Cabinet Secretariat, C/o Secretary ( R ), Research & Analysis Wing, Room No.7, Bikaner House Annexe, Shahjahan Road, New Delhi. Respondents By Advocate: Mr. Sudhir Walia in both the OAs. ORDER
By Honble Mrs. Meera Chhibber, Member (J) Grievance of the applicant is same in both these O.As. with the exception that in O.A. 1967/2010, she is aggrieved by memorandum dated 28.05.2010 while in O.A. 1665/2010 she is aggrieved by order dated 10.05.2010 (page 19). The subject matter of both the OAs is alleged unauthorized absence from 29.08.2008 to 26.11.2009.
2. The brief facts of the case are applicant is a 1987 batch Class I Executive Cadre Officer in the Cabinet Secretariat (SW) (hereinafter referred to as R&AW). The applicant was compulsorily retired vide order dated 18.12.2009 by invoking Rule 135 (1)(a) of the R&AW (Recruitment Cadre and Service) Rules. The said order was challenged by the applicant in the Tribunal by filing O.A. No.50/2010 which was allowed on 16.03.2010 quashing the order of compulsory retirement with a direction to the respondents to restore back the status with all consequential benefits. However, the judgment of Tribunal has been stayed by the Honble High Court vide order dated 03.05.2010 (page 142) without prejudice to her right to claim benefits arising out of her compulsory retirement in accordance with law after fulfilling the formalities as contemplated under the rules.
3. Pursuant to above directions of Honble High Court, respondents first issued order dated 10.5.2010 and then memorandum dated 28.05.2010 which for ready reference read as under:
Dated 10.5.2010 ORDER
Sub: Authorisation of provisional pension to Ms. Nisha Praya Bhatia, Ex-directior, IRLA No.1434 on her compulsory retirement.
Sanction of Head of Office is accorded for payment of provisional pension under the provisions of Rule 69 of CCS (Pension) Rules, 1972, to Ms. Nisha Priya Bhatia, Ex-Director on her compulsory retirement with effect from 18.12.2009 till regularisation of her period of unauthorized absence from 29.8.2009 to 26.11.2009. Ms. Nisha Priya Bhatia is authorized provisional pension on the last pay drawn by her on 28.8.2008 as per details given below:-
(a) Pay as on 28.8.2008 Rs. 46870 + 8700
(b) Pay scale PB-4 (Rs.37400-67,000/-)
) Date of joining Govt. service 22.2.21988
(d) Date of compulsory retirement 18.12.2009
(e) Provisional pension authroised Rs.27770, i.e.,50% of
Rs.46480 + 8700
2. Payment of provisional pension @ Rs.27,770/-p.m. may please be authorized to Ms. Nisha Priay Bhatia from 19.12.2009 till her period of authorized absence is regularized.
3. This authorization of provisional pension is subject to recovery of overpayment made, if any.
Dated: 28.5.2010 Ms. Nishra Priya Bhatia, ex-Director may please refer to her letter dated 27.2.2010 regarding regularisation of period of her absence w.e.f. 29.9.2008 to 26.11.2009.
2. Ms. Nishra Priay Bhatia is hereby informed that her contention on intimidation, restrain and prevention from performing duties between 29.9.2008 to 26.11.2009 have not been found acceptable. Ms. Bhatia is, therefore, requested that she may apply for leave due and admissible for the period of absence within 15 days failing which the period will be considered as unauthorized absence and will be treated as dies non under provisions of FR 17. Applicant is aggrieved by above order and memorandum.
4. The sole grievance of the applicant in these O.As. is that the respondents are treating the period from 29.08.2008 to 26.11.2009 as unauthorized absence and as dies non without holding an enquiry which is not permissible in law. If respondents feel she was unauthorisedly absent, they should have held an enquiry at that time. No enquiry was held because respondents know they are at fault.
5. According to the applicant, on 29.8.2008 her office premises were criminally trespassed/sealed and she was criminally intimidated and wrongfully restrained from attending to her work. The reasons are that on 7.8.2007., 8.8.2007 and 26.10.2007, the applicant had filed complaints to the competent authority of sexual harassment against two senior officers of her department viz. former Joint Secretary, Shri Sunil Uke, an officer on deputation to her department from the Customs and the then Chief of her department, Shri Ashok Chaturvedi. As soon as applicant gave the complaints of sexual harassment, a concerted campaign spearheaded by Shri Ashok Chaturvedi and Shri Sunil Uke began within the department painting her as a mentally unstable person and ridiculing her even though she has outstanding record. This was also being done because applicant refused to be part of prostitution racket being run by her seniors from the office premises.
6. The applicant took all remedies available to her in law to work at her office and to demand, from law enforcement agencies that action be taken against the respondent for wrongfully restraining her form performing her duties as a public servant. Applicant had given number of representations to the higher authorities to permit her to work and had even filed court cases for seeking this relief, which itself shows that she wanted to work but respondents did not allow her to work.
7. Applicant further submitted that the respondents are not even sure of the period of alleged absence because in the Honble High Court, respondents have stated she was absent from 29.08.2008 to 09.06.2009 whereas in affidavit filed before the Tribunal they have stated that applicant joined her duty on 06.04.2009. Both the statements are contradictory.
8. It is submitted by the applicant that in fact on 29.08.2008 the applicant, then under posting as Director (Training) in Gurgaon, was having lunch in Delhi when her official car and driver, Shri Bilendra, were suddently withdrawn by one of the accused in her complaint of sexual harassment Shri Ashok Chaturvedi the then Chief of the R&AW. Shri Bilender informed the applicant that he had been asked to leave the applicant and report at the Hqrs. with the vehicle. The applicant took a taxi to return to her office at Gurgaon. However, the counter intelligence officials and jawans of the SSB platoon guarding the campus physically prevented her from entering her office premises. She also learnt that counter-intelligence officials had entered her office room and established control over her belongings. This amounted to criminal trespass and wrongful restraint. It is from this stage that applicants struggle started to resume her duties and to seek action against those who had committed criminal offences against her under the Indian Penal Code while respondents ensured that she be not allowed to join the duties.
9. These facts are proved from the telegrams dated 30.08.2008 and 31.08.2008 sent to the Secretary ( R) and Additional Secretary (Trg.) given by the applicant to protest against criminal trespass of her office premises and wrongful restraint imposed upon her from attending the office and withdrawal of her official vehicle. She had also sent a telegram dated 30.09.2008 to the Joint Secretary (S) and Additional Secretary (Trg.) to renew her Identity Card followed by letter dated 10.08.2009 to the Additional Secretary requesting for renewal of her Identity Card. She had even sent a complaint dated 11.09.2008 to the Dy. Commissioner of Police, South District against sealing of her office premises and criminal restraint.
10. She had to even file Writ Petition No.7971/2008 in the Honble High Court seeking following relief:
(a) Issue a writ of mandamus or any other appropriate writ, directing the R&AW be ordered to end criminal trespass of the petitioners office premises and criminal restraint on her attending office. The petitioner should immediately be assigned work and her perks be restored.
(b) Issue an appropriate writ in favour of the petitioner and against the respondent No.1 with specific direction to issue a fresh identity card in lieu of the one which expired on August 30, 2008 so that she can enter her office and its other wings.
(c) The petitioners personal belongings, including medical records, over the department has forcibly established control, be immediately handed over to her.
(d) The petitioners Annual Confidential Reports be called for to enable the Honble Bench have an authentic assessment of the petitioners record of service and the damage done to her ACRs by Shri Ashok Chaturvedi.
(e) The Press Release dated 19.8.2008 by the R&AW (called the Cabinet Secretariat) be quashed as judgments contained therein on her work, conduct, personality, character and mental state has been publicly announced without any enquiry. The Press Release amounts to an act of defamation against the petitioner describing her as someone suffering from psychiatric illness.
(f) The respondent No.2 be asked to proceed on leave pending an independent enquiry into the petitioners complaint so that he does not use his power and authority to influence any independent enquiry that the Honble Bench may order and so that he can stop victimizing the petitioner through use of official machinery.
(g) Cost of the writ petition be also awarded to the petitioner against the respondents.
(h) Issue any other writ which this Honble Court may deem fit and proper in the facts and circumstances of the present case.
However, it was withdrawn for filing proceedings in appropriate forum.
11. It was in these circumstances, she had to file O.A. No.2687/2008 before the Tribunal seeking allocation of work responsibilities and for renewal of Identity Card.
12. Even after the Identity card was issued, she was not given any posting and asked to await the orders. Though she was allowed to join on 06.04.2009 but no work was assigned to her. She even has attendance sheet signed by herself, her P.A. and Sr. Field Officer attached with her.
13. Finally, it was the Tribunal which directed the respondents to allot some work to the applicant vide its order dated 15.5.2009 whereupon respondents posted her as Director Language (Training Centre) and not in her own cadre (Executive). She once again protested and had to file M.A. for seeking courts intervention. It is during these proceedings that the respondent gave a statement that they would post her back in the Executive Cadre in 6 months time.
14. On the basis of above facts, applicant strenuously argued that there is no justification to ask her to apply for the leave of the kind due. Since it is the respondents, who prevented her from joining the duties, she cannot be forced to apply for leave. In any case without holding the enquiry, respondents cannot treat the period from 29.08.2008 to 26.11.2009 as unauthorized absence or dies non. She has thus prayed that the O.A. may be allowed.
15. Respondents, on the other hand, have opposed both the O.As. They have submitted memorandum dated 28.05.2010 was issued in view of Honble High Courts order dated 03.05.2010 whereby compulsory retirement benefits were to be given to the applicant in accordance with law after fulfilling the formalities as contemplated under the rules. Pursuant to above directions, two cheques for an amount of Rs.6 lakhs, 2 hundred and fifty on account of provisional resettlement grant (page 144) and an amount of Rs.1 lakh, 27 thousand 5 hundred and 95 on account of payment of provisional pension w.e.f. 19.12.2009 to 30.4.2010 (page 146) were issued for giving to the applicant. Shri D.R. Sharma, Consultant Pension Cell contacted the applicant telephonically and requested her to collect the cheques but she refused to collect the same by saying that she has not asked for any such payment. Thereafter regd. Letter dated 12.05.2010 was dispatched on 13.05.2010 requesting her to collect the cheques (page 104) but she has not collected the cheques till the date of filing of the reply.
16. They have submitted that impugned memorandum is not an order but only a communication. The respondents never wanted to compel the applicant to apply for leave, as has been alleged in prayer (b). On the contrary it was a request to her to apply for leave so that period of unauthorized absence may be regularized and her retiral benefits may also be finalized without any delay. They have further stated that although this memorandum was issued on 28.5.2010, but department has not taken action against the applicant and have not treated the period as dies non. In case applicant does not apply for regularisation of her period of absence and should there be any requirement to treat the said period as dies non, the department shall follow the due process of law.
17. In response to O.A. 1665/2010, they have specifically stated that the Department has not made any recoveries/deductions from her provisional pensions on account of her absence from duty for the period 29.8.2008 to 26.11.2009. On the contrary department has released her provisional pension and re-settlement grant, and the cheques in this regard have also been issued by DACS but she has refused to collect the same.
18. They have explained that the applicant was directly recruited in the Junior Time Scale of the Research and Analysis Service (RAS) Group A in the Cabinet Secretariat R&AW in the year 1987. After her recruitment the applicant was put through training on Trade Craft followed by the language training. Thereafter she was posted at the Headquarters at New Delhi in different capacities. She was also sent on special assignment outside the country, where she remained posted till August, 2003. In the month of July, 2004, the applicant was posted as Director (Training), Gurgaon, where she remained posted till the date of her compulsory retirement on 18.12.2009, except for the period between 29.8.2008 to 26.11.2009, when she remained absent from duty. The applicant was desirous of specific postings in the Organization during her posting at the Training Institute, Gurgaon in the year 2007. Thereafter, the applicant filed complaints against her senior officers in the organization and also used to send abusive, vulgar and threatening SMSs, to the officers of the organization. They have denied that the applicant was criminally intimidated and her office premises was criminally trespassed/sealed, as alleged. It is further denied, that the applicant was restrained from attending to her work, as alleged. As a matter of fact, the Identity Card of the applicant had expired on 30.8.2008 and as per the Rules/Instructions, all officers of the organization were required to get themselves photographed and fill the new proforma for issue of I. Card. Since the applicant had not come forward to fill the proforma and get herself photographed, therefore, she was not issued the I-Card. Finally the applicant made a formal application on the printed proforma on 25.8.2008, therefore, after completing the formalities, the competent authority issued the I-card on 10.2.2009. .
19. As far as her complaint of sexual harassment is concerned, they have explained the department had constituted Complaints Committee headed by Smt. Sashi Prabha in terms of guidelines issued by the Honble Supreme Court in Vishaka Vs. State of Rajasthan and Others, 1997 (6) SC 241. However, the applicant refused to co-operate with the Committee and withdrew her complaint on 24.12.2007. However, it was decided that the Committee must proceed and submit its report. The applicant was given 7 opportunities, but she did not respond to the notices sent by the Committee. So far as the complaint against Shri Ashok Chaturvedi was concerned, the Government of India constituted a separate Complaint Committee headed by Ms. Rathi Vinay Jha, IAS (Retd.), to look into the complaint of the applicant. The Committee, invited evidence from the concerned parties and finally gave its report to Government of India on 23.1.2009. On the basis of the said report, an order was passed on 22.9.2009, the copy of which was also given to the applicant. The Complaints Committee did not find sufficient material in the complaints filed by the applicant. They have thus submitted that her complaints of sexual harassment were given due attention.
20. It is further denied that the applicant was initially allowed to attend the office but was later on not permitted to work as alleged. As a matter of fact, the applicant was relieved of her charge as Director (Training) on 21.8.2008. However, the applicant was intimated vide letter dated 25.8.2008, that she had taken over as Director under the supervisory control of AS (Training). She did not report on duty. Since AS (Training) was not in position, therefore, in partial modification of the earlier order dated 21.8.2008, it was ordered on 27.11.2008, that the applicant would remain attached with JS (Training). The applicant failed to submit her certificate of transfer of charge to JS (Training), which is mandatory and has to be signed by all the Gazetted officers, while assuming or resuming the charge of an office, after an interval of an absence or leave, transfer from one station to another or on promotion. As this certificate was not submitted by the applicant, when she came to report on duty to JS (Training) on 6.4.2009, she was asked to fulfill the necessary formalities.
21. At this stage she filed O.A. 2687/2008 wherein vide order dated 15.05.2009 respondents were directed to permit the applicant to join the duty and the requirement of submitting the certificate of transfer at this stage should be waived, therefore, in view of the directions given by this Honble Tribunal in its order dated 15.5.2009, the applicant could have joined the duty without submitting the certificate of transfer. However, she did not do so. Thereafter she was posted as Director (Language Training School) vide order dated 8.6.2009. Once again instead of joining her new assignment, applicant filed MA No. 1089/2009 in OA No. 2687/2008, wherein the applicant sought directions/stay against her new assignment, principally on the ground that her new assignment of Director (Language Training School) was totally separate cadre and that till date no Director had been appointed to this post. This Honble Tribunal vide its order dated 12.6.2009, was pleased to stay the posting order dated 8.6.2009. In view of the order dated 12.6.2009, the applicant did not report to her new assignment. They have thus stated that applicant is herself responsible for the absence.
22. They have further submitted that no action could be taken against her for unauthorized absence as she kept filing OAs/WPs. etc. With regard to different dates of absence mentioned in the replies to O.A. and Writ Petitions, they have submitted that it was a typing error and period up to 09.06.2009 was inadvertently mentioned. They have already filed CMP No.7688/10 for correcting the same with regard to the reply filed in O.A. With regard to the date 6.4.2009, they have submitted that the applicant had reported for duty on 6.4.2009, but since she had not submitted certificate of Transfer of Charge, which is mandatory, therefore, she had not actually joined the duty.
23. They have categorically denied that any instructions were issued by the Sr. Officers to prevent her from entering the office premises. There is standard security procedure, which are carried out for the purpose of security of the premises and equipment. It is denied that Shri Ashok Chaturvedi or any other official of the organization had criminally trespassed or wrongfully restrained the applicant, as alleged. They have also specifically denied that any order was backdated.
24. In fact vide letter dated 02.12.2008, applicant was asked to explain why she is continuously absent from duty. They have thus stated that since applicant has been unauthorisedly absent, therefore, the O.A. may be dismissed.
25. We have heard applicant, who appeared in person as well as the counsel for the respondents.
26. Applicant strenuously argued that she was prevented from joining her duties whereas respondents maintained, applicant was unauthorisedly absent from 29.9.2008 to 26.11.2009. Applicant emphatically stated that she had all the documents to prove her case, therefore, it should be decided by this Tribunal whether it can be termed as unauthorized absence at all. However, we find both the parties have spelt out different facts. Since these facts would have to be appreciated on the basis of evidence, we cannot sit as an Inquiry Officer in the matter and decide the issue. It would be necessary to hold an enquiry in the matter because without holding an enquiry, respondents can neither term the period from 29.9.2008 to 26.11.2009 as unauthorized absence nor as dies non. Though respondents have stated that they had requested the applicant to give her application for leave of the kind due but perusal of Memorandum dated 25.5.2010 shows in the last sentence respondents had also mentioned that if applicant does not apply for leave, the period will be treated as unauthorized absence and dies non. We would fully agree with the applicant that respondents can neither force her to apply for leave nor can treat the period as unauthorized absence or dies non unless it is proved in an enquiry.
27. Though respondents have stated they have not acted on this memorandum but once it is challenged in a court of law, it would not be sustainable in law because though in Ist part request is made, in last sentence tenor is completely changed. In view of above, memorandum dated 25.5.2010 is quashed and set aside.
28. In the instant case, till date no charge sheet has been issued to the applicant. The matter is simply being dragged on, though nothing prevented the respondents from issuing charge-sheet to the applicant, in case they were sure that applicant is unauthorisedly absent for such a long period. Inquiry can be initiated even now if respondents feel that applicant was unauthorisedly absent.
29. In fact after hearing both the parties, we do feel there are certain spells which are disputed but certain spells could have been regularized by the respondents on their own e.g. in reply respondents have themselves stated that applicant had formally applied for new I-Card on 28.5.2008 which was issued on 10.2.2009, i.e., after a period of over 9.1/2 months. If this time has been taken by the respondents to prepare the I-card and applicant was not allowed to join the office for want of new I-Card, such period cannot be attributed to the applicant for not joining her duties. It also cannot be lost sight of that there are number of representations given by the applicant to the authorities to allow her to resume the work but no reply was given to her. She even had to approach the court for seeking the relief that her I-Card be issued and she be allowed to resume her duties. From above facts there seems to be some truth in the allegations of applicant that she was prevented from joining the duties. However, we hasten to add here that all these facts would have to be decided by the respondents in the first instance. We would like to clarify we have only indicated our tentative view and it should not be taken as a definite finding returned by us.
30. In view of above facts, both the OAs can be disposed of by giving following directions:-
(i) Respondents shall first make an effort to regularize such period of alleged absence which occurred due to any delay or inaction on their part in issuing the I-Card or correct posting order or due to any court order etc. They shall also consider the attendance register which is stated to have been signed by the applicant, her PA and the Field Officer attached with her.
(ii) After considering the above facts, if respondents still feel that applicant was unauthorisedly absent for some period, they shall issue definite charge sheet to the applicant, giving her full opportunity to defend herself and then decide the period in accordance with law.
(iii) Respondents shall ensure that none of the officers against whom applicant had filed complaints of sexual harassment or corruption are appointed as Inquiry Officer or Presenting Officer because she has an apprehension, they may be biased against her. This direction has been given because justice should not only be done but seem to have been done also.
(iv) In case respondents decided to initiate the enquiry, it shall be completed within 4 months from the date of receipt of a copy of this order subject to co-operation by the applicant.
(v) We permit the applicant to accept the cheques prepared by the respondents, if not already collected, within 15 days, from the date of receipt of a copy of this order, which shall of course be without prejudice to her rights.
31. With the above directions, both the OAs stand disposed of. No order as to costs.
Let a copy of this order be placed in both the files.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh