Central Administrative Tribunal - Delhi
Mrs. Deepti Sinha vs Union Of India Through on 26 August, 2011
Central Administrative Tribunal Principal Bench OA No.2728/2009 New Delhi, this the 26th day of August, 2011 Honble Mr. Justice V. K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Mrs. Deepti Sinha W/o Sh. R. R. Sinha E-901, Sankati Kunj, Plot No.19-A, Sector-6, Dwarka, New Delhi 110 075. Applicant (By Advocate : Shri K. K. Sharma, Sr. Advocate with Shri Rajiv Bakshi) Versus 1. Union of India through Secretary, Ministry of Defence, South Block, New Delhi. 2. Controller General of Defence Accounts West Block, R. K. Puram, New Delhi. 3. Controller of Defence Accounts (AF) West Block, R. K. Puram, New Delhi. 4. Smt. K. N. Bhat G. O. (Administration) Office of Controller of Defence Accounts (AF) West Block, R. K. Puram, New Delhi. 5. Sh. R. N. Mitra (Retd.) The then ALAO (AF) H Block, Through Controller of Defence Accounts (AF) West Block, R. K. Puram, New Delhi. 6. Sh. Mahinder Singh Assistant LAO (AF) Office of ALAO (AF), H Block, New Delhi. 7. Sh. Saifuddin Sr. Auditor O/o CDA (AF) West Block-V, R. K. Puram, New Delhi. 8. Sh. V. K. Tiwari Sr. AO (Admn) O/o CDA (AF) West Block-V, R. K. Puram, New Delhi. 9. Sh. Dinesh Singh, IDAS Through Controller of Defence Accounts West Block, R. K. Puram, New Delhi. Respondents (By Advocate : Shri Ashish Nischal for Sh. Rajender Nischal) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Smt. Deepti Sinha, working as Senior Auditor in the office of the ALAO (Air Force), the applicant herein, is aggrieved by; (i) the Charge Sheet dated 18.09.2008 (Annexure-A1); (ii) the order dated 25.02.2009 (Annexure-A2) whereby the Disciplinary Authority imposed the punishment of reduction of pay by two stages from `12660 to `11680 in the time scale of Pay Band PB-2 (`9300-34800) and Grade Pay of `4200 for a period of two years with effect from 25.02.2009 without cumulative effect and not adversely affecting her pension and she would earn increments of pay during the period of reduction and that on the expiry of this period, the reduction would not have the effect of postponing her future increments of pay; (iii) to corrigendum dated 01.04.2009 (Annexure-A3) to the order dated 25.02.2009 wherein the Disciplinary Authority modified the above said penalty order dated 25.02.2009 and ordered her pay to be reduced by one stage from `12660 to `12160 in the Pay Band-2 and Grade Pay of `4200 for a period of two years with effect from 25.02.2009 without cumulative effect and not adversely affecting her pension; (iv) the office order No.118 dated 5.5.2009 (Annexrue-A4) whereby the Disciplinary Authority partially modified his earlier order No.79 dated 18.03.2009, (v) the major penalty chargesheet dated 21.07.2009 (Annexure-A5) and (vi) the letter dated 16.07.2009 whereby she was informed that the competent authority decided to postpone her annual increment due on 1st July due to non-regularisation of her absence. Impugning all these orders and letters, she has approached the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:-
(i) quash charge sheet dated 18.09.2008 (Annexure A-1) issued by the respondent no.4.
quash the illegal, arbitrary, malafide and unlawful orders dated 25.02.2009, 01.04.2009 and 05.05.2009 (Annexure A-2, 3 and 4) issued by the respondent no.4 whereby the Respondent No.4 being the Disciplinary Authority has imposed a major penalty in the case of minor penalty without holding any inquiry.
quash charge sheet dated 21.07.2009 (Annexure A-5) under Rule 14 of CCS (CCA) Rules proposing major penalty on the basis of identical charges and documents for which penalty has already been imposed in pursuance to charge sheet dated 18.09.2008.
(iv) direct the respondents to regularize the leave of the applicant with all the consequential benefits to the applicant as per rules.
(v) pass any other or further order which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. At the admission stage, the Division Bench of this Tribunal having heard the Applicants counsel on 24.09.2009, restrained the respondents from the proceedings with the inquiry on the basis of the Memorandum dated 21.07.2009. Further, on 16.04.2010, Shri K.K. Sharma, learned Sr. Advocate along with Shri Rajiv Bakshi learned counsel appearing on behalf of the applicant contended that in view of the above interim order of the Tribunal, the annual increments of the applicant could not have been stopped. Having heard the learned counsel for the parties, we ordered that in case the increments of the applicant had been stopped because of charge sheet dated 21.07.2009, the same would be restored. The said interim orders have been continuing.
3. We may briefly state the factual matrix of the case which led the applicant to file this OA. The applicant was appointed as Auditor on compassionate grounds on 28.11.1997 and was allotted Government accommodation for her stay where her brother and sister also stayed. She got married in February, 2005 to Shri R. R. Sinha who was working as Assistant Accounts Officer in the same office. She proceeded on maternity leave on 23.01.2007. It is alleged by the applicant that in March 2007, her husband was pressurized by the 9th respondent to initiate a note for notional pay fixation of an officer on the higher scale, which was not in accordance with rules. On this count, her husband was harassed by the 9th respondent culminating with his suspension which was revoked later on. In the meantime, her husband submitted a representation dated 1.06.2007 to the CDA (AF), 3rd respondent herein, alleging that there has been persistent harassment and victimization by the 9th respondent and his subordinates. Continuing further victimization, the 9th respondent issued an order of 8.06.2007 cancelling the allotment of Government accommodation on the ground that the same was let out to unauthorized persons and to vacate the same within 3 days. It is the case of the applicant that at that time she was on maternity leave (since 23.01.2007). Thereafter, vide order dated 12.06.2007 (AF), she was issued a letter imposing damages for unauthorized occupation of government accommodation and initiation of disciplinary action. In the meantime, the accommodation was got vacated on 14.06.2007, despite the representation given by the applicant on the same date. In view of these developments, the applicant moved the Honble High Court of Delhi against the arbitrary action of the respondents. While the adjudication of the High Court was pending, the said accommodation was surrendered by the applicant. It is the case of the applicant that she was further harassed by the transfer order dated 3.08.2007 transferring her to the office of ALAO (Air Force) H-Block. The applicant joined the said office on 22.10.2007 and found that there were very few women officers and she was not supplied with the attendance register intentionally by the 6th and 7th respondent in order to harass her. She complained to the 4th respondent about the conduct of those officers as she was shown as absent though she was regularly attending the office. In the meantime, the 4th respondents visited the office of the 5th respondent on 20.06.2008 when the applicant was present in the office but on 24.06.2008 she was issued a memo alleging misbehaviour and misconduct to which she submitted her explanation on 7.07.2008. Consequently, without accepting the representation, a charge sheet dated 18.09.2008 was issued to her by the 4th respondent. The applicant submitted her explanation through proper channel to the respondent No.4 on 10.10.2008. In the meantime, the 5th respondent informed her that the period of her absence from 10th June 2008 to 9th July, 2008 was not regularized by the competent authority vide order dated 19.01.2009 and subsequently on 25.02.2009 a penalty order of reduction of pay by two stages was imposed on the applicant. In the meantime, a Corrigendum dated 1.04.2009 was issued by the Disciplinary Authority which was received by her on 6.04.2009. She preferred an appeal against the said order on 6.04.2009, 11.05.2009 and 02.06.2009. It is the case of the applicant that her statutory appeal was not examined by the competent authority but the 4th respondent who was not competent issued an order dated 5.5.2009 modifying the penalty order. It is the case of the applicant that her appeal against the penalty order is still pending. In the meantime, the applicant applied for child care leave since the applicant and her husband who were working and had one minor child and nobody was available in the family to look after the child. It is also stated that the day care system was not working as the same was closed due to vacation and her child care leave was not sanctioned. She was also informed vide order dated 22.06.2009 that her request for the child care leave cannot be accepted. She was thereafter forced to join the duty. In spite of her repeated representations and request letters, her leave period was not regularized. On the other hand, she was issued with a fresh major penalty charge memo dated 21.07.2009 for the alleged misconduct of unauthorized absence under rule 14 of the CCS (CCA) Rules. Feeling aggrieved by all these actions of the respondents, the applicant is before us in the present OA.
4. Shri K.K. Sharma, learned Senior Advocate along with Shri Rajiv Bakshi learned counsel representing the applicant highlighted the background of the case to submit that the applicant was issued charge sheet dated 21.07.2009 with identical allegations of unauthorized absence as was also the alleged misconduct in the charge sheet dated 18.09.2008. Issue of charge sheet in piecemeal manner is nothing but gross misuse of official position by the 4th respondent, so much so the same amounts to make the applicant suffer double jeopardy. Referring to the corrigendum dated 1.4.2009 issued by the Disciplinary Authority Shri Sharma would contend that the penalty order dated 25.2.2009 was reviewed by the 4th respondent who did not have the authority to review his own order in the garb of corrigendium. Yet another contention was advanced by Shri Sharma to state that the statutory appeal filed by the applicant on 11.5.2009 to the 2nd respondent which was followed up with a letter dated 2.6.2009 non-consideration of the applicants appeal by the competent Appellate Authority is denial of statutory remedy available to the applicant. Shri Sharma would further submit that the respondents instead of considering applicants leave application and regularizing the period of absence as leave admissible, she has been intentionally issued the 2nd charge-sheet dated 21.09.2009 in order to harass her. One more infirmity was highlighted by Shri K.K. Sharma. The applicant was imposed a major penalty without any inquiry though the minor penalty charge-sheet dated 18.09.2008 was issued to her. On this ground alone, Shri Sharma contends, the penalty order deserves to be quashed. He further submits that the private respondents have harassed her and her husband by cancelling the accommodation and transferring her from one office to another which has culminated with two charge memos issued to her for no misconduct but availing leave due to her. The malafides levelled against the 4th to 9th respondents should be ordered to be probed into for appropriate action. Thus, he pleads that (i) the penalty order passed on the 1st charge sheet and (ii) the second charge sheet should be quashed and set aside with direction to the respondents to regularize her absence by sanctioning admissible leave to her.
5. On receipt of notice from the Tribunal, the official respondents have submitted their reply affidavit on 28.01.2009. During the hearing on 16.04.2010, we specifically observed that the applicant had alleged personal malafide against 4th to 9th respondents and though a joint reply had been filed on behalf of the respondents, specific allegations against the malafide had not been denied and the said private respondents were granted one more opportunity. In the meantime, the official respondents submitted additional documents on 14.01.2011 to show that the notice of the Tribunal has been served on the private respondents (4th to 9th respondents). The 6th, 7th, 8th and 9th respondents have filed their counter on 26.10.2010, 20.10.2010, 21.10.2010 and 20.10.2010 respectively. Despite receipt of notice, the 4th and 5th respondents did not file any affidavit nor were represented by their counsel during the hearing. Therefore, we did not have the benefit of their views while deciding the issues in the instant OA.
6. Shri Ashish Nischal appearing for Shri Rajender Nischal learned counsel for the official respondents would contend that the applicant never submitted her appeal against the revised penalty order. As such, it is submitted that she has not exhausted the available remedies before approaching the Tribunal. The applicants representations dated 6.4.2009, 11.05.2009 and 2.6.2009 cannot be considered as her appeal. However, respondents have taken action on each of those representations viz (i) she has been informed of the corrigendum modifying the penalty, (ii) one letter has been returned to her and (iii) another letter sent by the applicant has been a complaint which was properly looked into by the respondents. Responding to the contention that the applicant was imposed a major penalty whereas the charge sheet was issued for minor penalty, Shri Nischal would submit that the Disciplinary Authority issued a corrigendum after it came to his notice that DOP&T carried out an amendment in 2004. He would contend that the corrigendum was to carry out correction which would not be treated as a review. The mistake committed by the Disciplinary Authority was corrected by him. With regard to the cancellation of her Government accommodation and claim of damage rent, it was stated that the matter is subjudice as a Writ Petition is pending in the Delhi High Court. Referring to Annexures R5, R6, R7 and R8, Shri Nischal submitted that the applicant used to attend office for 2 = hours in the first half of the day only and accordingly she was marked absent for the second half. Initially, she refused to receive letters but on 7.7.2008 she received the letters and replied on 11.07.2008 in impolite manner. In respect of the legal infirmity that no inquiry was conducted, he clarified that in case of the minor penalty charge memo, inquiry was not mandatory.
7. It is contended that the applicant used to remain absent on the later part of the working hours after attending office just for 2= hours daily. Even on 4th and 9th July, 2008, she was absent altogether. Refuting the contention about non supply of attendance register to the applicant, counsel for the official respondents would submit that applicant herself was not available to sign even on the later part and, therefore, her such frequent absence was investigated by the respondent Nos.4&5 against whom certain malafide has been alleged which are far from truth. With regard to the Child Care Leave applied by the applicant, it is contended that the same can be availed only, if the employee concerned has EL to her credit as on the date of applying the said leave. She had 38 days of EL at her credit as on the date of application. This information was given to her vide letter dated 02.06.2009. As her un-regularised period of absence was not decided as on that date, she was refused by the Competent Authority CCL. Shri Nischal would submit that the second charge memo issued to the applicant is based on different alleged mis-conducts and has nothing to do with the first set of mis-conducts for which penalty was imposed. Her unauthorized absence period was also different in both the charge memos. Therefore, the claim that she is being harassed and likely to suffer with double jeopardy does not hold good.
8. The Respondent No.6 has filed his written affidavit on the alleged malafide levelled against him by the applicant. While refuting the allegations, he submitted that the applicant used to attend office in the forenoon only for 2= hours and he was duty bound to mark her absent for the second half, as was instructed by the LAO (AF). His reply clearly disclosed that whatever he has done is only on the basis of the official duties and has no personal grouse against the applicant. The respondent No.7,8 & 9 have also refuted the alleged malafide levelled against them by the applicant.
9. Having heard the rival contentions of the parties, with the assistance of the counsels, we perused the pleadings.
10. The applicant was charge sheeted in the letter dated 18.09.2008. She submitted her reply to the said alleged mis-conducts in her representation dated 10.10.2008 and denied the charges. It would be appropriate for us to examine the nature of charges framed and reply furnished by the applicant and the conclusions arrived at by the Disciplinary Authority. It is noted that the minor penalty charge sheet was issued and as such under the CCS (CCA) Rules there was no need to have a detailed enquiry against the applicant. The penalty order of the Disciplinary Authority is very exhausting and catalogues 5 sets of allegations, namely, (i) she was frequently absenting from the office, which adversely affected the performance in the audit of service books which was pending with the applicant, (ii) she was not signing the attendance register and not attending office regularly in the months of May, June and July, 2008, (iii) she was also neglecting her work and her cooperation with staff members on the official works was rather negligible, (iv) she was in the habit of dis-obeying the instructions and orders of her superiors, even she refused to sign Section Order dated 28.05.2008 issued by the Supervising Officer whereby she was instructed to keep the records/files/Service Books in the respective Almirahs in the neat and tidy condition,(v) she had refused to receive the Office Order dated 09.06.2008 issued by LAO(AF), further she used abusive language against her senior officers when the LAO (AF) visited her office to look into complaints and grievances raised by her.
11. In her reply, she has submitted that she was on maternity/commuted/Earned Leave from 23.01.2007 to 21.10.2007 during which period she was transferred to the office of ALAO (AF) and submitted that she used to discharge her duties regularly. She responded to say that she was never issued any warning letter by her Supervisors indicating that she was not attending to the tasks allotted to her. In the absence of any such Warning Letter, she pleaded that it should be construed that she was working in the office regularly and discharging her duties sincerely. This presumptive conclusion may not hold good in this case. She has alleged that the attendance register was intentionally concealed by SO (A) in connivance with others. She was not given the said register in order to harass her. She has never refused to sign the attendance register or receipt of any Section Order. The copies of the attendance register available in the pleadings disclose contrary facts that she has signed register on some days.
12. After detailed analyses of the charges framed against the applicant, the Disciplinary Authority has analysed the whole issue and being satisfied that the charges against the applicant were justified and correct concluded that she did not maintain devotion to duty and conducted herself in unbecoming manner with willful dis-obedience to the lawful and reasonable orders. The Disciplinary Authority has also concluded that the alleged mis-conducts being correct, she deserves to be imposed penalty and the penalty of reduction to a lower stage in the time scale of pay, pay band 2 by two stages for a period of two years without cumulative effect and not adversely affecting her pension was imposed vide order dated 25.02.2009. After realizing that the order has been issued on the basis of old CCS (CCA) Rules without taking into account, the amendment carried out in the year 2004, the Disciplinary Authority on his own has issued a Corrigendum to the said order on 01.04.2009.
13. At this stage, it would be appropriate for us to dwell on the issue of the Corrigendum, which was branded as a review done by the Disciplinary Authority, for such a review, the Disciplinary Authority was not competent to correct the order in the garb of a Corrigendum. This allegation levelled by the applicant has been examined. We find that the corrigendum has been issued by the Disciplinary Authority after properly examining the rule position and the mistake has been corrected by himself and as such the corrigendum corrects part of the order dated 25.02.2009. Both orders get merged into one order. By no stretch of imagination, the Corrigendum can be called as review. We reject the ground taken by the applicant and come to the considered opinion that the minor penalty imposed by the modification of the penalty indicated in the main order of 25.02.2009 are sustainable in the eyes of law.
14. In respect of malafide, we may observe that the applicant who alleged the malafides has the onus to prove the same. In the present case, the applicants wild allegations do not have supporting basis. Thus, the allegation of malafide levelled against the private respondents are rejected.
15. With regard to the issue of cancellation of her accommodation (K-137, Civil Zone, Subroto Park) by the respondents under SR 317-B-21, the allegation was that during security check carried out by the Air Force revealed about the subletting to the unauthorized persons. The response of the applicant indicates that due to her fathers sudden demise, she was given compassionate appointment and her younger brother and unmarried sister were staying with her. They are her relations and not unauthorized persons. The pleadings reveal that this controversy is the subject of adjudication in WP(C) 5515/2007 and interim stay of the damage/market rent against the applicant has been ordered on 7.4.2008 to operate till the disposal of Writ Petition. As the said Writ Petition is still pending, we restrain ourselves to offer any observation in the matter.
16. We may now advert to the second set of charges. We find those are far different from the first set of charges for which the penalty has already been imposed. Applicant has indicated that for the similar charges she is being charge-sheeted twice . We find that the charges may be similar i.e. unauthorized absence but the periods are different and Competent Authority is duty bound to discipline the officials for their alleged mis-conduct. If the applicant feels, she is innocent, she should prove the same through her reply and in the inquiry. Vide Memorandum dated 21.07.2009, the applicant has been issued a charge sheet under Rule 14 of CCS (CCA) Rules, 1965 for the alleged misconduct that she has unauthorizedly marked the attendance register as EL, CCL, HPL on her own without getting her leave sanctioned by the Competent Authority from May, 2008 to March, 2009. The statement of imputation indicates that she remained absent during the said period for 67 days. She is yet to submit her reply. She came to the Tribunal on 22.09.2009. As stated within respondents have been restrained to proceed on with the inquiry on this charge sheet. We do not find sufficient grounds to interfere and quash the charge memo. It is trite law that Courts and Tribunals should exercise judicial restraints at the interlocutory stage unless such charges are legally unsustainable. We feel that the disciplinary case should proceed to its logical conclusion and the applicant is directed to submit her explanation to the charges within two weeks from the receipt of a copy of this order and within 4 months from the date of receipt of her explanation, the disciplinary enquiry and the passing of the final order in the case must be completed. In view the above orders and directions, the interim orders passed on 24.9.2009 are vacated.
17. Considering the totality of facts and circumstances of the case, we come to the considered conclusion that the applicant has not made out the case in her support. Resultantly, the OA being devoid of merits is dismissed, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/