MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
1 The applicant is aggrieved by Annexure A-V order issued by the 2nd respondent imposing penalty of removal from service and appellate order Annexure A-VII issued by the 3rd respondent dismissing the appeal and confirming the penalty of removal from service imposed on the applicant.
2 Brief facts of the case as stated by the applicant are that he did his apprenticeship in the Naval Dockyard Apprentice School from 7.3.1977. On completion of apprenticeship he was appointed as H.Skl. (Grade-I) in the Naval Dockyard, Visakhapattanam on 21.6.1978. It is stated that he was suffering from severe Arthritis problem and had to remain on medical leave in loss of pay on several occasions. It is submitted that the applicant had put in 20 years 2 months and 19 days of service excluding the apprentice-ship period of 1 year 3 months while he applied for voluntary retirement. He applied for voluntary retirement on 8th Aug.1998 requesting to relieve him on 8th Sept 1998. His application was forwarded to Dy.General Manager (Production). The General Manager (Production) forwarded the same to the 2nd respondent. On completion of his tenure, on 8.9.1998 the applicant left for his native place. It is averred that he was continuously contacting the 2nd respondent over phone as also through correspondence. At last in May 2002 when he visited the 2nd respondent, he was served with letter dated 31.5.1999 stating that on calculation it is revealed that the applicant has only 19 years 9 months 11 days of qualifying service at his credit whereas minimum qualifying service required for voluntary retirement is 20 years, therefore, he is not eligible of pension. He submitted his Annx.A3 representation requesting the respondents to include Earned Leave and Half Pay Leave he earned as per department rule so that he gets 20 years of qualifying service, to enable him to avail VRS. Instead the respondent issued Annx.A2 charge sheet dated 30.8.2002 alleging that the applicant is unauthorisedly absent from duty from 9.9.1998. The applicant denied the charges levelled against him. Disciplinary proceedings were initiated. Applicant submitted his written statement. Thereafter the 2nd respondent without considering his explanation issued Annx.A5, penalty order. Against the disciplinary authority's order the applicant filed appeal before the appellate authority, 3rd respondent. The Appellate authority rejected his appeal by Annx.A7. It is alleged that on receipt of Annx.A11, the applicant came to know that he was removed from service and there is some outstanding payment. He alleged that the notice for voluntary retirement was given on 8.8.98 and he was informed only by Annx.A2 dated 31.5.1999 that he is not eligible for pension as he does not have minimum service required for voluntary retirement. It is also contended that if his apprentice-ship period of 1 year 3 months is added the total length of service would be more than 20 years.
3 The respondents filed their reply controverting the contention of the applicant and submitted that the applicant was in the habit of proceeding on leave on loss of pay frequently. He remained on leave from 30.9.96 to 28.12.96 on medical ground. Respondent No.2 directed him to report to the Superintendent, District Govt Hospital, Trivandrum for medical examination. Again he sent leave application for the period from 29.12.96 to 28.3.97. In his representation dated 3.3.97 admitted that he could not comply with the direction as he was bedridden and was undergoing Ayurvedic treatment. To prove his contention he submitted laboratory reports and bills of medicines alongwith his representation. On 7th July 97, he was again directed to undergo medical examination at District Govt Hospital, Trivandrum. In reply he again submitted that he was undergoing Ayurvedic Treatment from Dr.K. Bhargavan and was taking bed rest. He promised to undergo medical examination on his recovery. Again he submitted Laboratory reports and cash memos for various medicines. On 1.8.97, the Superintendent, Govt Hospital, Trivandrum reported that the applicant did not turn up for medical examination. By another application dated 8.8.1998, without ascertaining from his service record whether he had the requisite qualifying service of 20 years, he submitted his request for voluntary retirement. It is submitted that before issuing Annx.A2 rejection of VRS dated 31.5.99, another communication dated 9.9.1998, was sent to the applicant to which the applicant did not respond, Again another communication was sent on 13.7.99 directing him to report to duty forthwith or to forward medical certificate from nearest Govt Hospital/District Medical Officer indicating nature of illness failing which the whole period shall be treated as unauthorised absence. He did not respond and remained absent from duty He was served with charge sheet dated 30.8.2002. During the course of inquiry the applicant admitted the charge. The Inquiry Authority submitted his report on 7.11.2003 finding that the charges are proved. On the inquiry report the applicant submitted his representation on 26.11.2003. After considering his representation the disciplinary authority passed the impugned order Annx.A5. The appeal preferred against the order of the disciplinary authority was rejected and the penalty imposed by the disciplinary authority was confirmed by the appellate authority. They have raised objection regarding jurisdiction and limitation. It is further stated that he remained unauthorisedly absent from 9.2.94 to 25.4.94 (76 days), 14.7.95 to 16.9.95 (65 days), 6.10.95 to 30.7.96 (9 months 24 days), 30.9.96 to 21.10.97 (more than 1 year). Regarding qualifying service, since he remained absent from duty unauthorisedly from 1994 to 1997, there was a shortage of the requisite 20 years qualifying service for grant of voluntary retirement. As per Rule 48-A of CCS (Pension) Rules, 1972, it is for the applicant to ascertain whether he had the requisite qualifying service of 20 years before seeking voluntary retirement. As per the record his qualifying service was verified and he had 19 years 9 months 11 days as on 8.9.98. It is also averred that he did not intimate the correct address for communication. They further submitted that as per Rule 16 of CCS (Pension) Rules, 1972, service as an apprentice shall not count as qualifying service except in the case of SAS apprentice in the Indian Audit and Accounts Department or the Defence Accounts Department. They further submitted that Rule 49 of CCS (Pension) Rules, 1972 is not applicable in this case.
4 Heard the learned counsel for the parties and perused the record. Service record of the applicant was scrutinised.
5 Counsel for the applicant has argued that the applicant remained ill during the period of his absence and was taking continuous treatment from Ayurvedic Doctor. On the other hand the counsel for the respondents submits that the applicant is a habitual absentee from 1994 onwards and he did not heed the advice of the respondents to report to the medical board for examination or to produce medical certificate from a Govt Hospital.
6 Admittedly, the applicant remained absent for a considerable period without intimation to the department. Communication was also sent to his last known address but he did not pay any attention. Disciplinary proceedings was initiated against him. It appears that before the Inquiry Officer he admitted the charges and he was given opportunity to defend his case. The applicant found guilty of the charges framed against him. Hon'ble Supreme Court time and again held that the Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive on its own independent findings on the evidence. It is well settled law that the power of judicial review of the Tribunal/High Courts are limited in the matters of departmental enquiries. In catena of judgments the Hon'ble Apex Court held that normally the High Court in writ jurisdiction may not interfere with those findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and or legally untenable.
7 In the instant case I am unable to hold that it is a case of no evidence, therefore, the findings arrived by the Inquiry Officer cannot be said to be perverse and are not liable to be set aside by this Tribunal while exercising judicial review. The applicant was removed from the service after holding an enquiry and furnishing enquiry report and completing other formalities., Therefore, it cannot be said that the principles of natural justice are violated in the instant case.
8 Govt of India instruction under Rule 48-A of CCS (Pnsion) Rules, 1972, provides as under:
"(ii)Verification of qualifying service before giving notice - Before a Govt servant gives notice of voluntary retirement with reference to Rule 48-A, he should satisfy himself by means of a reference to the appropriate administrative authority that he has, in fact, completed 20 years' service qualifying for pension."
9 As regards the contention of the applicant that if his apprentice- ship period is added, the total length of service would be more than 20 years. In this context the respondents have stated that as per Rule 16 of CCS (Pension) Rules, 1972, service of an apprentice shall not count as qualifying service except in the case of SAS apprentice in the Indian Audit and Accounts Department or the Defence Accounts Department. With regard to application of Rule 49 of CCS (Pension) Rules, 1972, this rule is applicable to those government servants who are retiring before completing the qualifying service of 10 years.
10 The applicant has filed this OA to set aside the Annx.A2 order, of rejection of his request for VRS and Annx.A5 order of removal from service and A7 order of confirmation of penalty on appeal. The counsel for applicant argued strenuously to uphold her view point that there is no delay in this case. According to her, the present cause of action arisen from Annx.A11 which say that he is entitled for Rs.7175 from DCRWS fund since 1988 and that he was removed from service w.e.f 1.4.2004. This argument is patently unacceptable as the applicant did attend the enquiry and he admitted the charges. Moreover, he appealed against the punishment of removal which was rejected. Therefore, the counsel’s version that the applicant was unaware of the imposition of punishment is far from truth. Annx.A11 shows the same address, as is shown at Annx.A2, rejection of request for VRS, which was returned as undelivered. The counsel for applicant argued that Annx.A2 was returned because address was wrong. It is only the spelling of the house name which is not correct, in respect of two alphabets. With the same spelling, all other communications to the applicant were delivered. Therefore, about rejection of his appeal, he should have approached this forum, in 2006. The same lackadaisical attitude he has shown to his duty from 1996, he has displayed in filing this OA, also at his sweet will. Therefore in my opinion, Annx.A11, an innocuous communication regarding payment of some welfare amount can be taken as cause of action leading to filing of OA. Therefore, this OA is hit by delay.
11 In Apparel Export Promotion Council Vs. A.K.Chopra, 1999(2) ATJ SC 327, Hon'ble Dr.A.S.Anand, Chief Justice, observed that High Court cannot substitute its own conclusion with record to the guilt of the delinquent for that of departmental authorities unless the punishment imposed by the authorities is either impermissible or such that it shocks the conscience of the High Court.
12 Therefore, it can be safely inferred from the dictum laid down, by the Apex Court, that the penalty, imposed, should be commensurate with the gravity of offence. In this case, undisputedly, the applicant was short of due service for VRS by less than 3 months. The respondent did give him ample opportunity to report to Govt Hospital for medical examination or produce medical certificates from Govt Hospital. He did not avail of many opportunities given to him and remained incommunicado till the charge sheet was issued in 2002 and he was summoned for enquiry. According to him he did not receive Annx.A2 order rejecting his request for VRS. Since he admitted the charges and conceded the mistake on his part, perhaps the disciplinary authority could have penalised him with compulsory retirement. One earns minimum pension with 10 years of service and the applicant had put in close to 20 years. No doubt the applicant had maintained stoic silence on the whole issue for too long; since the respondents had complaints about his long absence on medical grounds and not his work so he deserves one more opportunity for re-consideration of his appeal.
13 In view of the foregoing, I quash and set aside Annx.A7 order. I direct the 3rd respondent to reconsider the applicant's Annx.A6 appeal, with due diligence and application of mind and issue a speaking order within a time line of four months. The O.A is disposed of with the above direction. No costs.