Central Administrative Tribunal - Delhi
Ms. Rashmi Mehra vs Union Of India Through on 15 November, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2220/2009 This the 15th day of November 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Ms. Rashmi Mehra Ex. Scientist B (Emp.Code 2444) Under National Informatics Centre Department of Information Technology Ministry of Communication & Information Technology A Block, CGO Complex, Lodi Road New DelhiR/o 414, Kucha Brij Nath Chandni Chowk, Delhi ..Applicant (By Advocate: Ms. Meenu Mainee) Versus Union of India through 1. Secretary (Information Technology) Department of Information Technology Ministry of Communication & Information Technology Electronics Niketan 6, CGO Complex, Lodi Road New Delhi-3 2. Director General National Informatics Centre Department of Information Technology Ministry of Communication & Information Technology A Block, CGO Complex, Lodi Road New Delhi-3 3. Joint Director Genera National Informatics Centre Department of Information Technology Ministry of Communication & Information Technology A Block, CGO Complex, Lodi Road New Delhi-3 ..Respondents (By Advocate: Shri M M Sudan) O R D E R
Shri Shanker Raju:
Applicant, who was Scientist B in National Informatics Centre (NIC), by virtue of this OA, has impugned the Presidential order dated 5.12.2007 imposing upon her post-inquiry a penalty of dismissal from service. Also assailed is an order passed in review dated 14.7.2008 where the penalty has been upheld.
2. While working as Scientist B, applicant was served with a memorandum under Rule 14 of CCS (CCA) Rules, 1965 for a major penalty alleging that she had been absenting from duties since 29.11.2005. The charge sheet was issued to her on 19.6.2006. During the course of inquiry, applicant had joined back and had received the charge sheet on 11.8.2006. Thereafter from time to time notices for preliminary hearing as well as inquiry were sent on her address at Rohini, which came undelivered with postal remarks that the applicant does not reside at the address and has not left any new address. On the basis of above, the inquiry officer has held the applicant guilty of the charge, which through a representation was sent to the applicant on the address at Rohini. On the basis of inquiry report, which on being undelivered, the Presidential order was passed, which on review when confirmed the penalty of reduction has been imposed, leading to the present OA.
3. Applicant, at the outset, states that in her service records, she has also been residing at 414, Kucha Brij Nath, Chandni Chowk, Delhi where no communication was ever sent by the respondents and when the service came back undelivered, no substituted service was accorded. Accordingly, the applicant has neither been given any participation in the disciplinary proceedings, which was illegally held ex parte, nor was any copy of inquiry report served upon her, which later on was sought by her under RTI. This act of the respondents has deprived her reasonable opportunity to effectively defend the charges against her, which constitutes not only violation of principles of natural justice but also causes grave prejudice to her.
4. Learned counsel for applicant would contend that there were mitigating circumstances, as she was suffering attack of depression and she was treated in Vimhans Neurosciences Mental Hospital. Medical records submitted to the respondents have not been taken into consideration and the Presidential order has been passed, which is a non-speaking order.
5. Regarding review order, it is stated that though the applicant has given all her mitigating circumstances but none of it was considered and no finding has been recorded on proportionality of punishment.
6. On the other hand, Shri M M Sudan, learned counsel for respondents vehemently opposed the contentions and stated that the inquiry has been held in accordance with the rules and as the applicant has failed to intimate about her absence and has not taken prior permission, the penalty imposed upon her is commensurate with the misconduct.
7. Regarding communication, it is stated that on the last address, which was submitted by the applicant, a communication was sent and once it was not received, applicant was rightly proceeded ex parte.
8. Lastly, it is contended that regarding ex parte proceedings, once the charge sheet was served upon the applicant, it was her duty to attend the proceedings.
9. We have carefully considered the contentions of the parties and perused the records.
10. Insofar as the reasoned order is concerned, the disciplinary as well as appellate authorities or the authority in revision or review are mandated to pass a speaking order dealing with the contentions. In the order passed by the President the mitigating circumstances, which have been brought by way of application filed by the applicant, as reflected by the inquiry officer, having not been taken, including the reasonable grounds, the penalty was inflicted through a non-speaking order.
11. In the order passed in review, though the mitigating circumstances have been highlighted but the same were not considered and on proportionality of punishment, no finding has been recorded, which vitiates the order.
12. The effective service of the communication in law has been defined by the Apex Court in Dr. Ramesh Chandra Tyagi v. Union of India & others, 1994 SCC (L&S) 562 wherein it has been held that the charge sheet when returned back with an endorsement left, it is incumbent upon the authorities to make efforts under the Service Rules to adopt the substituted service. Having not done so, the penalty inflicted cannot be sustained.
13. In Union of India & others v. Dinanath Shantaram Karekar & others, 1998 SCC (L&S) 1837, the Apex Court on postal endorsement not found, it was made incumbent upon the respondents-Government to make efforts to serve the charge sheet or to do the substituted service.
14. Recently, in the matter of communication, the Apex Court in Union of India v. S.P. Singh, 2008 (2) SCC (L&S) 1, relying upon the catena of decisions, has ruled that when the communication is sent at wrong address, the same would not amount to a correct communication.
15. Viewed in the above dicta, we find that apart from the address of the applicant of Rohini, address of Chandni Chowk, Delhi was also available on record with the respondents. However, they have not made any efforts for substituted service by publication in the Newspapers and have also not sent the communication at the available address, i.e., at Chandni Chowk, Delhi. As a result of which, applicant could not get the opportunity to participate in the inquiry. Merely because she has received the charge sheet, it would not absolve the respondents from their obligation from time to time to communicate the applicant the progress and stages of the disciplinary proceedings. The remarks in postal service that addressee is not available would not amount a legal service. In such view of the matter, neither the inquiry nor was any participation in the inquiry ever served upon the applicant on valid legal service. This has deprived the applicant a reasonable opportunity to put her defence and to rebut the charges effectively, which violated the principles of natural justice, as even after completion of 18 years of service, an extreme penalty of removal has been inflicted upon her.
16. Resultantly, OA is allowed to the extent of quashing the impugned orders. As a consequence thereof, respondents are directed to reinstate the applicant in service. However, they are at liberty, if so advised, to resume the proceedings from the stage of giving liberty to the applicant in the disciplinary proceedings and in such an event, law shall take its own course. Insofar as the interregnum is concerned, the period would be decided as per the law, rules and instructions on the subject. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/