Central Administrative Tribunal - Delhi
Arun Kumar Sharma vs Government Of Nct Of Delhi Through Its ... on 27 July, 2009
Central Administrative Tribunal Principal Bench OA No.1759/2007 New Delhi this the 27th day of July, 2009. Hon'ble Mr. Shanker Raju, Member (J) Hon'ble Dr. Veena Chhotray, Member (A) Arun Kumar Sharma, S/o Shri A.P. Sharma, R/o 54, Shivam Apartments, Sector-15, Rohini, Delhi=110085. -Applicant (By Advocate Mrs. Avnish Ahlawat) -Versus- 1. Government of NCT of Delhi through its Chief Secretary, Delhi Secretariat, Players Building, I.P. Estate, Delhi. 2. Principal Secretary [Finance), Govt. of NCT of Delhi, Delhi Secretariat, Players Building, I.P. Estate, Delhi. 3. Controller of Accounts, Principal Accounts Officer, A Block, Vikas Bhawan, New Delhi-110002. 4. Pay & Accounts Officer-XV, Lok Nayak Jai Prakash Hospital, New Delhi-110002. -Respondents (By Advocate Shri R.N. Singh, for Shri R.V. Sinha, Advocate) O R D E R Hon'ble Mr. Shanker Raju, Member (J):
Applicant through this OA has challenged an order passed by the disciplinary authority (DA) on 30.5.2006 pursuant upon a disciplinary proceeding, removing him from service and treating the period of absence as dies non. Also assailed is an order passed in appeal, dated 24.01.2007, whereby the penalty has been reduced to compulsory retirement w.e.f. 16.05.2004 with retiral dues and lastly an order passed in revision, whereby the penalty of compulsory retirement has been upheld with prospective effect.
2. Applicant was appointed as Lower Division Clerk (DASS Grade-IV) in 1972 and was promoted as Upper Division Clerk on 18.10.1984. On completion of about 35 years of service an application was moved by him on 30.4.2004 for grant of earned leave (EL) w.e.f. 17.5.2004 to 16.9.2004 to visit Canada to see his ailing mother-in-law. This was handed over to one Shri Chander Bhan, PAO and was diarised vide diary No.5983 on 6.5.2004. This has been put up to the competent authority on 17.5.2004. However, when nothing was heard, applicant preferred a notice for voluntary retirement on 11.6.2004, but when no action was taken thereon, he proceeded to Canada in anticipation of grant of his leave. However, on 11.6.2004 the request for voluntary retirement was rejected and a contemplated proceeding was proposed for leaving the country without prior approval of the competent authority. Applicant received e-mail from the respondents to immediately join duties, which has been responded to through Electronic Media and accordingly medical certificates have been submitted. A memorandum for major penalty proceedings for remaining absent was issued to applicant under Rule 14 of the CCS (CCA) Rules, 1965. However, on 3.12.2004 applicant was promoted as Grade-II DASS and stood relieved on 2.2.2005 to the new department. Applicant came back and wanted to join his duty on 21.3.2005. However, ultimately he was allowed to join his duty on 7.4.2005.
3. Applicant participated in the enquiry, where a retired enquiry officer (EO) was appointed, which was objected to by him. A bias was also raised against the EO, who was not keen to afford applicant a reasonable opportunity. However, his request was rejected. His demand for documents was also turned down vide enquiry report dated 5.12.2005 and without examining the applicant under Rule 14 (18) of the CCS (CCA) Rules, 1965 he was held guilty of the charge, which on representation culminated into a penalty, which was toned down and upheld by the authorities above, giving rise to the present OA.
4. Learned counsel of applicant Mrs. Avnish Ahlawat stated that the penalty imposed is illegal. It is stated that during the course of enquiry applicant has been prejudiced, as evidence brought against him has not been put to him in the form of cross-examination, as mandated under Rule 14 (18) of the Rules, which has been held to be illegal by the Apex Court in Ministry of Finance v. S.B. Ramesh, 1998 SCC (L&S) 865.
5. Learned counsel would also contend that on the basis of RTI information that the EO has deprived applicant a reasonable opportunity throughout the enquiry, as despite participation and seeking documents the relevant documents required for defence have not been provided and rather applicant has been compelled to disprove the charge without any proof by the prosecution.
6. Learned counsel would further contend that existence of letter dated 30.4.2004, where the applicant has sought for leave and the permission to go abroad was not at all considered, as non-existent and subsequently the aforesaid letter on RTI was found to be existing on record and also order-sheet, which suggest that the application of the applicant was put up to the higher officers, clearly shows non-application of mind by the EO. It is apprised that apart from penalty S-5, liability has also been fixed on the order of the Chief Information Commissioner (CIC).
7. Learned counsel would next contend that with such illegalities the DA, without dealing with the grounds of applicant, on his ipsi dixit imposed an extreme punishment and the letter dated 2.8.2004, which was earlier to the enquiry proceedings was treated as a confession of the applicant.
8. Learned counsel has also assailed the appellate order on the ground that once it is incumbent upon the appellate authority to have considered the illegalities of the procedure, yet toning down the punishment, instead of quashing it, is not a fair order passed.
9. Learned counsel stated that the applicant has not committed any misconduct, as the respondents who were duty bound to consider his request for grant of leave and permission to go abroad withheld it, applicant, on mitigating circumstances having 300 EL to his credit, had to proceed to Canada and on joining duty leave of the kind due was not granted, instead disciplinary proceedings have been initiated against him.
10. Learned counsel further stated that a retired officer could not be appointed as an EO for which a decision of this Tribunal in Dhruv Bhagat v. Govt. of NCT of Delhi [OA No.2050/2004] has been relied upon. The learned counsel also relied upon a decision of the Guwahati Bench of this Tribunal in Vijay Bhatnagar v. Union of India, 2005 (3) ATJ 40.
11. It is lastly stated that according to the CCS (Leave) Rules, 1972 if leave application made 15 days in advance is not rejected and communicated to the employee, the leave shall be deemed to have been sanctioned. Learned counsel stated that the punishment imposed, on the doctrine of proportionality, is not commensurate with the misconduct.
12. On the other hand, learned counsel of respondents vehemently opposed the contentions and contended that the leave cannot be claimed as a matter of right. Merely moving an application for leave, applicant cannot abandon his duty. It is stated that the enquiry conducted after CIC directive indicts applicant in hand in glove with the employees. As such, the punishment imposed, which has been toned down in appeal, is commensurate with the misconduct and the enquiry has been conducted as per the Rules.
13. We have carefully considered the rival contentions of the parties and perused the material on record. At the outset, applicant who has wished to close the enquiry from the record produced by the respondents indicate that later on he joined the enquiry and submitted his written statement, yet in violation of Rule 14 (18) of the Rules the evidence brought against him by the EO has not been put to him by way of cross-examination, which has vitiated the enquiry, as grave prejudice has been caused to applicant, because the existing documents were withheld by the respondents, which were later on disclosed on RTI, were discarded. The other record, which was lying with the respondents, has been shielded to hold applicant guilty of the charge. The decision of the Apex Court in S.B. Ramesh (supra) on all fours covers the present issue.
14. Remaining absent from duty as a cardinal principle cannot be used as thumb rule to hold that it will be a grave misconduct in all the cases. As per Rule-7 of the CCS (Leave) Rules, 1972, leave cannot be claimed as a right, but the government servants have been encouraged to take leave regularly as per Department of Personnel & Training OM dated 27.3.2001. Applicant had 10 years to go for his retirement in 2004, yet his request for leave has not been acceded to and responded to within a reasonable time. The Department of Personnel & Training OM dated 29.9.1986 on the recommendations of the IV Central Pay Commission declared that the leave sanctioning authorities are requested to ensure that the EL is not ordinarily refused to an employee. Moreover, as an administrative authority, when created under a statute, has to act fairly in a reasonable manner. It is established on record that the applicant moved an application for grant of leave and permission to go abroad on 30.4.2004, yet it was not responded to within a reasonable period of time of two weeks, as a result of which applicant was constrained in the circumstances when his mother-in-law was seriously sick at Canada to seek voluntary retirement. Bad administration indicates that the request of the applicant for grant of leave and voluntary retirement has been, without any justifiable cause, kept pended for an unreasonable period in that emergent situation and was ultimately rejected on 11.6.2004. As the applicant had already moved an application for leave through proper channel to the competent authority, he drew a reasonable belief that the leave might have been sanctioned and hence proceeded to Canada. Whereas this fact has not been considered by the EO and rather in his report what has been taken note of is the application moved for change of EO, which clearly shows that at all stages of enquiry by not adopting the procedure and concentrating on the allegations levelled against him EO was biased, which is really apprehended by the applicant. The DA, in such an event, in view of the decision of the Apex Court in Registrar of Cooperative Societies, Madras & Anr. v. E.X. Fernando, 1994 (2) SCC 746, should have changed the EO. Moreover, the issue of appointment of a retired government officer is no more res integra as held to be illegal. A DA while considering the enquiry report merely because applicant has not referred to his earlier application in his subsequent application dated 17.5.2004 considered the letter of the applicant of 2.8.2004, which has been a conditional one, where he has stated that he has proceeded without seeking prior permission, as the permission has not forth come by that time, once considered as a confession, cannot be countenanced, in view of the decision of the Apex Court in Jagdish Prasad Saxena v. State of Madhya Bharat, AIR 1961 SC 1070.
15. The DA though sought certain documents, out of which medical record was submitted, yet without dealing with the contentions of applicant during enquiry, imposed a major punishment of removal from service. There has been non-application of mind by the DA as to the application moved by the applicant.
16. Though right to move application does not guarantee right to leave but it is expected from the administrative authority to act fairly. The application received by respondents, which exists in their record, should have either been dismissed or considered. It cannot be construed logically that the application dated 30.4.2004 has not been considered by the respondents, yet his notice for voluntary retirement dated 11.5.2004 was acted upon on receipt. Respondents cannot approbate and reprobate simultaneously.
17. An issue was raised by the respondents counsel that on RTI information, in the wake of the directions by CIC an enquiry has been conducted where the role of the applicant was found dubious, we find from the record that one Shri Chander Bhan, PAO accepted to have received the application of the applicant, but it is stated that when the decision on the leave application was pending, a request for voluntary retirement was made by applicant, it has become redundant.
18. In a matter of disciplinary proceeding though absence for a long period without leave and permission may be construed as a grave misconduct, but a fact situation existing in a particular case would be decisive to hold the above. In the instant case though the applicant had sufficient leave to his credit and had moved an application, it is the administration who withheld, without any basis, decision on his application, as a result of which he had to leave in an emergent situation and in mitigating circumstances. On coming back, instead of granting him leave applicant has been victimized to the extent that his services have been dispensed with. A similar situation has cropped up in V.C. Banaras Hindu University & Ors. v. Shrikant, 2006 (6) SCALE 66, where holding that when an application is moved and has not been responded to, leaving duty would not amount to misconduct, though as a general proposition is supported by principles of natural justice, yet would apply in the instant case as well. As we find that the applicant whose leave cannot be denied and has to be decided within a reasonable period of two weeks as per the Leave Rules, having not decided the same, the contributory negligence could also be levelled against respondents, where in the application moved on 30.4.2004 and a subsequent note prepared by the competent authority was approached to pass orders and the grounds for leave have been well mentioned in the application in due format. In our considered view the appellate authority while dealing with the above pleadings except of 34 years of service of applicant and his pensionary benefits took a commensurate view of the matter by reducing punishment has not at all gone into the above aspect of the matter on illegality of the procedure and the prejudice caused to applicant. The appellate order cannot be countenanced in law, as contrary to Rule 27 (2) of the Rules.
19. The revisional authority except postponing the effect of compulsory retirement to 2006 has not done better than the appellate authority.
20. In the result, for the foregoing reasons, we allow this OA. Impugned orders are set aside. Respondents are directed to reinstate applicant in service with all consequences in law, except back wages, within a period of two months from the date of receipt of a copy of this order. No costs.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.