1. By this OA, applicant has challenged order dated 18.10.2002 (page 21) whereby applicant was compulsorily retired from service and order dated 30.11.2006 whereby his appeal was rejected. He has also sought directions to the respondents to reinstate him with all consequential benefits.
2. It is submitted by the applicant that he was appointed as a labourer w.e.f. 11.01.1990. On 01.03.2001 he was served with a show cause notice (page 27) calling upon him to show cause why disciplinary action should not be taken against him as he has remained absent from duty without prior permission w.e.f. 4.12.2000 till date.
3. Applicant replied he was sick due to psychological problems for which he is taking treatment from RML shall resume duty as soon as declared fit (page 28). He joined the duties yet memorandum dated 29.11.2001 was served on him on three charges: That the said Shri Ravi Kumar while functioning as Lab in Yard Group of CVD Delhi Cantt during the period from Dec 2000 to Mar 2001 remained absent from duty w.e.f. 04 Dec 2000 to 18 Mar 2001 without prior permission/Leave/intimation. The said Shri Ravi Kumar has failed to give intimation to the depot Administration regarding his absence and to submit leave application within the period of three days from the date of his absence in contravention to CCS (Leave) Rules 1972. Thus the said Shri Ravi Kumar has committed an act of remaining Absent Without Leave.
Shri Ravi Kumar by his above act exhibited conduct unbecoming of a Government servant in violation of Rule 3 of CCS (Conduct) Rules 1964. Article of Charge II That the said Shri Ravi Kumar while functioning as Lab in aforesaid office during aforesaid period remained absent from duty w.e.f. 04 Dec 2000 to 18 Mar 2001 without prior permission/intimation/leave.
The said Shri Ravi Kumar has failed to give intimation to the depot Administration regarding his absence and to submit leave application within a period of three days from the date of absence in contravention to CCS (Leave) Rules, 1972. The said Shri Ravi Kumar was directed by the Administration vide CVD Delhi letter No. 3016/1053/LAB/Ravi/75/Estt-IND dated 02 Mar 01 and 3016/1053/LAB/R/11/ESTT-IND dated 01 Mar to report on duty forthwith and also directed to show cause as to why disciplinary action should not be initiated against him for the above lapses. The said Shri Ravi Kumar has failed to submit medical certificate along with leave application. Thus the said Shri Ravi Kumar failed to comply with above instructions and committed an act of disobedience of orders.
Shri Ravi Kumar by his above act exhibited lack of devotion to duty/disobedience of orders and conduct unbecoming of a Government servant in violation of Rule 3 of CCS (Conduct) Rules, 1964.
That the said Shri Ravi Kumar while functioning as Lab in aforesaid office was arrested by the police on 05 Aug 99 at 06.10 PM in case FIR No. 359/99 dated 05 Aug 99 UNDER SECTION 354/509/34 IPC. The said Shri Ravi Kumar did not inform the depot administration about his involvement in criminal case. The said Shri Ravi Kumar was directed by the depot administration vide CVD Delhi letter No. 3016/1053/LAB/R/75/ESTT-IND dated 25 May 01 to submit the court judgment and also directed to submit the reply against the show cause notice within a period of 10 days failing which necessary action will be taken against him. The said Shri Ravi Kumar has failed to submit the aforesaid documents. Thus the said Shri Ravi Kumar failed to comply with above instructions and committed an act of disobedience of orders.
Shri Ravi Kumar by his above act exhibited conduct of a Government servant in violation of Rule 3 of CCS (Conduct) Rules 1964.
4. Ex-parte enquiry was held. Charge was held as proved. Copy of the report was sent to the applicant vide letter dated 12.8.2002 (page 33) calling upon him to give representation. Applicant gave the representation on 27.9.2002 (page 121). Not finding any satisfactory reply and considering the evidence which had come on record, disciplinary authority passed order dated 18.10.2002 imposing the punishment of compulsory retirement with pensionary benefits. Being aggrieved, he filed appeal to the Minister. It was not decided so served a legal notice on 01.02.2005 (page 46) whereupon he was informed should file appeal to the Director General, OS (page 48). He then file appeal to the DG,OS on 12.06.2006 (page 49) stating therein he was absent due to illness and that he has been acquitted in the criminal case. The appeal was rejected on 30.11.2006 (page 25).
5. It is in these circumstances this OA is filed challenging the orders as mentioned above.
6. Counsel for the applicant submitted (1) since applicant was sick, it cannot be termed as willful absence. He invited out attention to medical certificates and prescriptions annexed from page 60 onwards.
(2) The punishment is disproportionate because this would affect not only him but his entire family as well. (3) Even though applicant was acquitted in the criminal case but that judgment has not at all been taken into consideration. (4) While imposing punishment, authority had taken into consideration his past record though that was not part of charge, therefore, orders are liable to be quashed and set aside.
(ii) Ex. Constable Balwant Sinngh v. State of Haryana reported in 1999 (2) ATJ 113.
(iii) K. Gopakumar v. The Chief Staff Officer (P&A) Headquarters, South Naval Command Wellingdon Island P.O. Kochi and Ors. reported in 2005 (1) AISLJ (CAT) 217.
(iv) Braj Kishore Singh v. The State of Jharkhand and Ors. reported in 2005 (3) ATJ 328.
(v) S.C. Luhadia v. Managing Director, State Bank of Bikaner and Jaipur reported in 2002 (2) SCT 341.
(vii) Shri Shashank Ramankant Patankar v. U.O.I. and Ors. reported in 2006 (2) ATJ 120 (viii) Dulal Chandra Sharma v. State of Mizoram and Ors. reported in 2003 (1) ATJ 405 8. Apart from above, counsel for the applicant placed reliance on para 2 under Government of India's decisions (page 81 of CCS (CCA) Rules, 1965).
9. Respondents have opposed this OA. They have submitted applicant had admitted his misconduct that he remained absent without leave. In reply to show cause notice had stated was absent due to family circumstances but is now taking a different stand that he was sick. Had he been sick, he would have produced medical certificate and informed the office but he did not even inform. Moreover, full opportunity was given to him to defend himself, he did not even bother to participate in the enquiry.
The charge was proved on the basis of evidence produced during the enquiry yet lenient view was taken and while imposing penalty of compulsory retirement, his pensionary benefits have been released, therefore, this case calls for no interference. It may be dismissed.State of Rajasthan and Another v. Mohd. Ayub NazB.C.Chaturvedi v. Union of India and Ors.
12. Three charges were levelled against the applicant viz. (1) unauthorized absence w.e.f. 4.12.2000 without permission. (2) Disobedience or orders as in spite of letter dated 2.3.2001 and 1.3.2001 to report on duty forthwith and to show cause, he failed to submit medical certificates along with leave application. (3) He was arrested on 5.8.99 in case FIR No. 359/99 but he did not inform about his involvement in the criminal case and did not even submit documents in spite of letter dated 25.5.2001.
13. It is relevant to note that due intimation was given to the applicant about holding the enquiry and the same was adjourned, in order to enable the applicant to join the enquiry but in spite of knowledge, he did not appear in the enquiry. It is thus clear that he did not even make an effort to defend himself. Charge was proved in the enquiry. Copy of findings was sent to him. In response (page 121) applicant admitted he had committed a mistake. He submitted that since he was absent due to sickness and family circumstances are pitiable, therefore, he may be reinstated. He would not repeat it in future.
14. As far as medical certificate and prescription attached with OA are concerned, we find almost all of the prescriptions are either for a period prior to 4.12.2000 or after 18.3.2001 e.g. page 60, 61, 63, 64, 66, 67, 68, 69, 70, 71, 72 and 73. Even the medical certificate annexed at page 74/75 relates to the period from 15.1.98 to 4.4.98. Similarly at page 76 relates to 97. Page 78 relates to 9.5.2001, i.e., after the period in issue before us meaning thereby there is nothing on record even now, to show that applicant was absent from 4.12.2000 to 18.3.2001 due to sickness. Even otherwise in his appeal applicant had accepted the mistake. Applicant did not submit any medical certificates either before the Inquiry Officer or before the authority or even before the court for relevant period, therefore, the contention of counsel for the applicant that applicant was absent due to sickness is not at all tenable in law. The same is accordingly rejected. In view of above findings, the judgments relied upon by counsel for the applicant are of no assistance to him.
15. It is absolutely clear that applicant was unauthorizedly absent w.e.f. 4.12.2000 to 18.3.2001 and did not submit medical certificate in spite of directions given by the authorities. The charges were proved in the enquiry. Applicant did not even dispute the correctness of findings but he only submitted he was sick whereas no medical certificate was submitted to substantiate his claim, therefore, charge 2 also stands proved.
16. As far as 3rd charge is concerned, applicant did not even inform about his arrest in the criminal case. Counsel for the applicant strenuously argued that applicant has been acquitted in the criminal case and that has not been taken into consideration. However, perusal of orders show, applicant was not given punishment due to the criminal case. In fact the charge was that he did not intimate the office about his arrest which itself is a misconduct. This fact is not even disputed, therefore, 3rd charge also stands proved. Ultimately if he is acquitted in criminal case, that is of no consequence because his punishment was not based on the criminal case, therefore, this contention is also without any merit.
17. Counsel for the applicant next contended that punishment of compulsory retirement is disproportionate. Law is now settled by Hon'ble Supreme Court that so long charge is proved and there is no irregularity while conducting the enquiry, courts should not interfere on the quantum of punishment because it is within the domain of authority to decide as to what punishment should be imposed on the employee.
18. Unauthorised absence read with disobedience is definitely a serious charge. In State of Rajasthan v. Mohd Ayub Naz reported in 2006 SCC (L&S) 175, Hon'ble Supreme Court held order of removal from service is the only proper and proportionate punishment to be awarded to an employee who remains willfully absent for three years without intimation to the Government. Direction given by the High Court's to reduce the punishment of dismissal to compulsory retirement with retiral benefit was set aside by observing that High Court committed a grave error in interfering with the punishment awarded.B.C. Chaturvedi v. Union of India and Ors.
, it was held as follows: Each case depends upon its own facts. In a case of the type on hand it is difficult to have evidence of disproportionate pecuniary resources or assets or property. The public servant during his tenure may not be known to be in possession of disproportionate assets. He may hold himself or through somebody on his behalf property or pecuniary resources. To connect the officer with the resources or assets is a tortuous journey, as the Government has to do a lot to collect necessary material in this regard. In normal circumstances, an investigation would be undertaken by the police to collect and collate the entire evidence establishing the essential links between the public servant and the property or pecuniary resources. Snap of any link may prove fatal to the enquiry. Exercise of care and dexterity are necessary. Therefore, delay in itself is not fatal in this type of cases. CBI had investigated and recommended that the evidence was not strong enough for successful prosecution under the Prevention of Corruption Act, 1988 but recommended to take disciplinary action. No doubt much time elapsed in taking necessary decisions at different levels. So the delay by itself cannot be regarded as violative of Article 14 or 21 of the Constitution.In Govt. of Tamil Nadu v. A Rajapandian, Hon'ble Supreme Court The Administrative Tribunal cannot sit as a Court of Appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority.
21. In view of above settled law, since charge has been proved against the applicant, we do not think it calls for any interference by us specially when authorities have already taken a lenient view in the matter inasmuch as and while imposing compulsory retirement, have ordered his retiral benefits be given to him.
22. The last contention raised by counsel for the applicant is that authority could not have taken his past misconduct into consideration while imposing punishment. This point is also no longer resintegra as Hon'ble Supreme Court has now taken the following view in the case of Govt. of A.P. and Ors. v. Mohd. Taher Ali We are satisfied that in fact the respondent deliberately absented himself from duty and did not offer any explanation for his absence from election duty. It is not the respondent's first absence. He also absented himself from duty on earlier occasions also. In our opinion there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority.
Consideration of the earlier misconduct is often only to reinforce the opinion of the said authority. The police force is a disciplined force and if the respondent is a habitual absentee then there is no reason to ignore this fact at the time of imposing penalty.
Moreover, even ignoring the earlier absence, in our opinion, the absence of 21 days by a member of a disciplined force is sufficient to justify his compulsory retirement.
23. We find the same position exists here also in the present case.
Unauthorised absence is accepted/proved. Applicant did not offer any valid explanation. Moreover, he did not even inform about his arrest and disobeyed the orders. He had earlier also absented. This case is, therefore, fully covered by the above-said judgment. The same is accordingly rejected. We are satisfied that reference was made to his earlier absences only to show that this was not the first time that applicant had remained unauthorizedly absent and that was not the basis for imposing punishment. Therefore, there is no force in the last contention also.
24. In view of the latest judgment of Hon'ble Supreme Court as referred to above, any earlier judgment given by the Tribunal or Hon'ble High Court to the contrary, loses its relevance. It goes without saying that under Article 141 of the Constitution, we are all bound to follow the latest view adopted by Hon'ble Supreme Court.
25. In view of above discussion, we find no merit in the OA. The same is accordingly rejected.