Judgment:
Hon'ble Sri K. George Joseph, Administrative Member:
This O.A. is filed with a prayer to direct the respondents to reinstate the applicant forthwith and grant all consequential benefits as if the applicant had been in service from the date of removal till the date of reinstatement.
2. The applicant while working as Electrician cum Plumber in Jawahar Navodaya Vidyalaya, Kottayam was chargesheeted for unauthorised absence and disobeying of the orders issued by the competent authorities. The Enquiry Authority did not say that the applicant is found guilty of the charges. The Disciplinary Authority disagreed with the findings of the Enquiry Authority and punished the applicant with removal from service which was upheld by the Appellate Authority. Hence the O.A.
3. The Articles of Charges against the applicant are as under:
"ARTICLE -I
That the said Shri Ajaikumar R. while working as Electrician-cum- Plumber at JNV, Kottayam absented himself from duty without sanction of leave from competent authority from 22.07.2006 to 29.7.2006 and applied for extension of leave from 30.7.06 to 5.8.06, 6.8.06 to 14.8.06 and from 15.8.06 to 26.8.06 and remained away from duties. This he was doing in earlier period also. At the time of school reopening on 1.6.2006 he absented himself from duty from 30.5.2006 to 3.7.2006. By doing so, the said Shri Ajaikumar R. habitually remained on unauthorized absence, shown negligence and dereliction of duties, and thus acted in a manner unbecoming of a Govt. servant which amounts to misconduct requiring action under FR 17 A and rule 3 of CCS (Conduct Rules)1964.
ARTICLE-II
That the said Shri. Ajaikumar R. was expected to do all MandR works pertaining to power supply, water supply and other electrical fixtures with the assistance of MandR committee. But he disobeyed Order No. F.17/JNVK/2006-07/257 dated 08/07/2006 to 5/7/2006. The said Shri Ajaikumar R has not reported to Shri V. Nageswara Rao, Assistant Commissioner, Navodaya Vidyalaya Samiti, Regional Office, Secunderabad as per the directions of Office Order No.F.17/JNVK/200506/416 dated 20.8.2006. By doing so, the said Shri Ajaikumar R shown negligence and dereliction of duties and deliberately disobeyed orders, and thus acted in a manner unbecoming of a Govt. servant which amounts to misconduct requiring action under Rule 3 of CCS (Conduct Rules)1964.
4. The applicant submitted that he had applied for leave with medical certificates. It is quite evident that the absence of the applicant is due to medical reasons. Therefore the absence from duty was not deliberate. The applicant had reported for duty on 28.8.06 with medical fitness certificate. But he was not permitted to join duty. He was asked to report to the Assistant Commissioner at Hyderabad as per order dated 29.8.06. He was not granted advance for the journey to Hyderabad. As he had no money he could not go to Hyderabad and report to the Assistant Commissioner. This cannot be considered as willful non-compliance with the order of the competent authority. He is chargesheeted also for absence from duty for which leave was sanctioned. He had done all possible M and R works in the school and had reported that there was a major work of changing the electrical wires. He could not fit the pulveriser due to defective wiring in the mess. The rewiring work was not done and M and R funds were diverted. The Disciplinary Authority considered the orders dated 6.11.05, 12.4.06 and 5.7.06 which were extraneous to the chargesheet, which is illegal and irregular. It is further submitted that the Disciplinary Authority had rendered findings on the charges even before giving an opportunity of hearing to the applicant on the reasons for disagreement. The disagreement has no basis at all as no evidence was adduced in the enquiry for the Disciplinary Authority to disagree with the findings of the Enquiry Officer. The Enquiry Officer had observed that it should have been ascertained whether applicant's absence from duty amounted to misconduct or not and that further investigation was needed to decide whether he is guilty of willful disobedience or not. Therefore the punishment imposed is illegal, arbitrary and deserves to be set aside.
5. The respondents contested the O.A. The applicant had remained away from duty for 316 days out of 748 working days since he joined the Vidyalaya on 9.8.04. The applicant had admitted to habitual absentism and leaving the duty station without permission. He had also admitted, not having completed the maintenance and repair works and not reporting to the Assistant Commissioner at Hyderabad. The Appellate Authority has agreed with the findings of the Disciplinary Authority. The respondents relied upon the decision of the Hon'ble Supreme Court in State of Punjab and Others vs. Sukhwinder Singh;(2007)10 SCC 511, not to show misplaced sympathy to the applicant. The decision of the Apex Court in Union Bank of India vs. Vishwa Mohan(1998)4 SCC 310 was relied upon to drive home the point that even if charges under Article II are not established beyond doubt, the charge of habitual absent ism under Article I, on the principle of severeability in departmental enquiry, is serious enough to justify the penalty of removal from service. Further the decision in Damoh Panna Sagar Rural Regional Bank and Another vs. Munna Lal Jain; (2005)10 SCC 84, the Apex Court held that the Court should not go into the correctness of the choice made by the Administrator and should not substitute its decision for the Administrator. It was argued that having regard to the factual and legal position, there is no merit in the O.A. and the same deserves to be dismissed.
6. Arguments were heard and documents perused.
7. Annexure A4 order dated 27.11.07 is reproduced below:
"PF/AK/JNVK/2007-08/714 Date: 27/11/2007
ORDER
Whereas an inquiry under rule 14 of the Central Civil Services (Classification,Control and Appeal) Rule 1965 was held against Shri Ajaikumar R,ECP,JNV,Kottayam on 04/10/2007.
A copy of the inquiry report is forwarded herewith. The findings of disciplinary authority and tentative reasons for disagreement on the findings of Inquiry Officer is also enclosed herewith.(emphasis supplied) Therefore, Shri. Ajaikumar R, charged official is hereby directed to submit in writing within 15 days his representation, if any, to the undersigned.
Sd/
Principal
Jawahar Navodaya Vidyalaya,Vadavathoor,
Kottayam, State Kerala.
To
Shri Ajaikumar R, Electrician-cum-Plumber, JNV Kottayam
At home town address - T.C.No.38/2222,NRA-A,101,
Poojappura, Trivandrum."
It is very clearly stated that the findings of the Disciplinary Authority are enclosed therewith. Again the findings of the Disciplinary Authority as per Annexure A4 conclude:
"Therefore, the charges under Article II are sustained and in the opinion of disciplinary authority such willful disobedience of orders warrant action under Rule 3 of CCS Conduct Rules, 1964."(emphasis supplied)
The Disciplinary Authority has already made up its mind without having the benefit of considering the final defence of the charged officer. The relevant rules in regard to action on the enquiry report are Rules 15(2) and 15(2)A of CCS(CCA) Rules, which are reproduced as under:
"(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant. (2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules(3) and (4)." (emphasis supplied)
The Inquiring Authority is expected to forward a copy of the report of the Inquring Authority together with its own tentative reasons for disagreement, if any. Thereafter the Disciplinary Authority has to consider the representation, if any, submitted by the Government servant and record its findings before proceeding further. In the present case it is crystal clear that the Disciplinary Authority rendered its findings before hearing the applicant in the matter of disagreement of the Disciplinary Authority with the findings of the Inquiring Authority. This is a serious procedural lapse on the part of the respondents in conducting departmental enquiry against the applicant.
8. The Enquiry Officer had held that the applicant is guilty of leaving the duty station on 22.7.06 without proper permission or even intimation to the competent authority. But he had submitted subsequently leave application with a medical certificate. He also found that the applicant had absented from duty on numerous occasions totaling 316 days out of 714 working days with medical certificates. But whether the applicant had genuine grounds to be on leave or not can be ascertained only by getting a second opinion from a Medical Board. It should have been ascertained whether there was negligence and dereliction of amounting to misconduct requiring action under FR 17-A and Rule 3 of the CCS (Conduct)Rules, 1964 on the part of the applicant in habitually absenting himself from duty on the strength of medical certificates. He has again found that the charged officer has some reasons for non-completion of MandR works. These reasons can be examined to decide whether they are genuine. The applicant had stated that he had not taken over the stores of electrical and plumbing materials from any official of the Vidyalaya and as such he had no stores in his charge. No document is produced to substantiate this statement. In the above circumstances the Enquiry Officer concluded that further investigation is needed to decide whether the applicant is guilty for willful disobedience of orders in carrying out MandR works. Based on the documents produced the Enquiry Officer concludes that the applicant had applied for 4 days leave from 29.5.06 to 1.6.06 and the same was sanctioned. It is also established that no financial assistance was given to the applicant to carry out the order to report to the Assistant Commissioner at Hyderabad . Therefore there was no willful disobeying of the order dated 29.8.07. In the disagreement note vide Annexure A/4 sent to the applicant by the Disciplinary Authority , none of the points in favour of the applicant in the report of the Enquiry Officer is touched upon by the Disciplinary Authority. In fact they are simply ignored. In the reply statement filed by the respondents it is stated that "The Disciplinary Authority has for valid and sufficient reasons disagreed with the finding of the Inquiry Officer and the reasons were communicated to the applicant under Annexure A4. Therefore, there is no violation of the principles of natural justice." But the disagreement of the Disciplinary Authority with the findings of the Enquiry Officer suffers from glaring omissions of the findings of the Inquiring Officer which are unfavourable to it. This is another serious procedural lapse.
9. Reliance on the orders dated 16.11.2005, 12.4.06, 5.7.2006 , in the order dated 28.7.08 imposing the penalty of removal from service, which are extraneous to the chargesheet, makes the order illegal and irregular. Yet another procedural lapse.
10. Habitual absentism on the part of the applicant is based on records. Witnesses to prove the charge of absenteeism are not required. But the charge of not completing Mand R works calls for witnesses to prove the same. By not giving a list of witnesses to prove that MandR works were not completed not only does the Disciplinary Authority dispense with the means to prove the charge, but the applicant also is deprived of his right to cross examine them and refute the charge against him.
11. When the applicant reported for duty on 28.8.06 with a medical certificate he was not allowed to join duty. Instead he was directed on 29.8.06 to report to the Assistant Commissioner, Regional Office, Hyderabad. The decision not to allow him to join duty and the decision to send the applicant who was working as Electrician cum Plumber in Navodaya Vidyalaya at Kottayam to the Regional Office at Hyderabad without allowing him to join duty are decisions which no reasonable person could have taken. These actions on the part of the respondent defines logic. The decision making process on the part of the respondents in removing the applicant from service suffers from serious procedural lapses and deficiencies as shown above making the removal of the applicant from service legally untenable . Therefore the orders at Annexure A/5 and Annexure A/7 are liable to be quashed and set aside.
12. However, the applicant is found to be absenting from duty on medical certificates or otherwise for 316 days out of 748 working days during the period from 9.8.04 to 26.08.06. Even if his absence is on genuine grounds he is not suitable for the job of Electrician cum Plumber in a residential co-educational Institution, as observed by the Enquiry Officer. The services of an Electrician cum Plumber are essential for maintaining power supply and water supply for the safety and security of 580 students and 40 staff members and members of their families and for running the Vidyalaya smoothly. When his services are most needed, the applicant does the disappearing trick. As the purpose for which the applicant was appointed as Electrician cum Plumber is not served, the competent authority will be justified in dispensing with his services in accordance with rules and procedures. In the instant case the authorities concerned had a case against the applicant but they messed it up by not following the rules and procedures scrupulously. The concern of the competent authorities for running the Vidyalaya smoothly, resulting in the firing of the applicant is to be commended, while their utter procedural ignorance on how to go about it is to be commiserated over.
13. For the procedural lapses and deficiencies already discussed, the O.A. is allowed. Annexures A5 and A7 orders are quashed and set aside. The respondents are directed to reinstate the applicant with all consequential benefits from the date of removal within one month of receipt of a copy of this order. The respondents are at liberty to proceed de novo to dispense with the services of the applicant, in accordance with rules and regulations.