| SooperKanoon Citation | sooperkanoon.com/55394 |
| Court | Central Administrative Tribunal CAT Delhi |
| Decided On | Apr-30-2007 |
| Judge | S Raju, R A Neena |
| Appellant | Ashok Kumar Arora S/O Late Shri |
| Respondent | Union of India (Uoi), Through |
2. Applicant, who had been earlier posted on hard stations, had been a chronic patient of bronchial asthma since 1998. While posted at Silchar, i.e., a place, which does not suit as per the climatic conditions, continuance of applicant due to his ailment was subjected to a medical examination regarding fitness of civilians in the field service on the basis of his bronchial asthma in 1994. The concerned graded specialist recommended applicant permanently unfit for duties in humid, dusty and extreme cold conditions, as a result of which applicant was transferred in 1996 to Delhi.
3. An order passed by the respondents on 11.11.1998 transferred applicant from Delhi to Tunir whereas applicant objected to his being posted against the conditions where humid conditions are averse to the medical report. The OA preferred by applicant was turned down, as also the Writ Petition filed before the High Court, yet an order passed by the High Court in Review directed consideration of medical fitness of applicant before posting. Accordingly, on rejection of his request as applicant has not responded to the order led to issuance of a major penalty chargesheet under Rule 14 of the CCS (CCA) Rules, 1965, whereby applicant has been alleged to have absented himself from duty w.e.f.
23.6.1999 and his failure to comply has been treated as an act which failed to maintain absolute integrity and devotion to duty. Applicant, in the meanwhile, was transferred to Delhi and enquiry proceeded with exhibit of documents with Presenting Officer brief filed as well as the defence brief. After the enquiry was culminated, the following is the finding of not guilty of articles of charge by the enquiry officer (EO): The charges framed against the CO are deliberated upon one by as follows: (a) Charge No. 1: MES-304567 Shri Ashok Kumar Arora, AE B/R in pursuance of the High Court order was instructed to join GE (P) NW Tunir as per E-in-C's Branch, Delhi posting order No. MES/178/98 dated 11 Nov 98 and GE (W) Delhi M.O No. 1014/Offrs/1111/E1B dated 21 Jun 99 issued on 21 Jun 99. However, onbeing SOS from his previous unit the officer failed to report to his new unit viz GE (P) NW Tunir as ordered and remained absent from his duties wef 23 Jun 99 to till date.
DELEBRATION: After scrutiny of document available with GE (West) Delhi Cantt and submitted by CO following things are evident.
(i) CO is chronic case of Bronchial Asthma since 1988 and is under constant medication since then.
(ii) Upon being posted to a humid Station CO has duly represented to higher auth., expressed willingness for voluntary retirement and sought help of judicial system for justice.
(iii) GE (West) Delhi Cantt issued him with mov order through the case was sub-judicial and same has been sent by post on 23 Jun 99 (after date of SOS ie. 22 Jun 99) duly recd by CO on 26 Jun 99 in office itself from postman. The mov order at that juncture was not valid and required necessary amendments by GE (West) Delhi Cantt subsequently which has not been done and the CO has also been forced to stay out of premises of office of GE (West) Delhi Cantt.
(iv) The High Court of Delhi has left the onus with administrative auth of finding the medical fitness of petitioner for posting to a particular station.
(v) The CO has not been subjected to any medical examination by the auth for verification of his medical status.
(vi) CO has been representing periodically to the competent auth and stayed at Delhi in view of his physical condition.
In view of the above the absence of CO based on invalid mov order of 21 Jun 99 is incorrect. The auth have time and again stressed for his reporting to GE (NW) Tunir first for reconsideration later the same being not feasible by CO hence leading to his absence.
CONCLUSION ON CHARGE NO-1 In view of the above since the charge were based on invalid Mov order the CO is NOT GUILTY. (b) Charge No. 2 : MES-304567 Shri Ashok Kumar Arora, AE B/R by his above act committed an offence in that he had failed to maintain absolute integrity, devotion to duty and acted in a manner which is unbecoming of a Govt servant and thereby by Shri Ashok Kumar Arora, AE B/R has contravened the provision of Rule 3 (i) (ii) & (iii) of CCS (Conduct) Rules 1964.
(a) It is evident from record of Service of CO that he has complied with posting to hard turnover Station in 1988 and in 1993. He was declared unfit for duties in humid, HAA dusty and extreme cold elimatic conditions being case of Brachial Asthma in 1994. He continued to serve till Jan 1996 to complete his tenure posting despite being unfit.
(b) Asthma is a disease with no cure and can be controlled only by prevention to triggers and medications, the immunity of body gets weaker as a person grows old and in case of CO he was already 55 years old in 1999. The contention that he would have improved cannot be agreed to considering his case being as old as 1988 and suffering still till date.
(c) The CO has only acted in a manner to protect his own life and it is evident from events of 17 Mar 03 and 27 Mar 03 the conditions of Mumbai are not suitable for him. For the matter of self-defence the only thing he could do was to stay away from Mumbai which he has done along with periodic representations to various authorities.
Though it seems he has acted in a manner unbecoming of govt servant, failure to maintain absolute integrity, devotion to duty they are after effects of his staying away from Mumbai to protect his own life. In his case neither the justice was done nor being seen as done.
CONCLUSION OF CHARGE NO.2 : In view of the above the charges framed against CO Shri AK Arora, AE B/R are not correctly proved and he is NOT GUILTY for the same.
4. The DA on receipt of the report, disagreed with the findings of the EO, with the following comments: AND WHEREAS, on examination of Inquiry Report and the relevant documents on the record, the undersigned disagrees with the Inquiry Officer's findings for the following reasons: (a) I do not agree with the findings and conclusion of IO. IO's findings are based on the view of CO and he has not taken into consideration the brief of the Presenting Officer.
(b) In the deliberation of the IO he has stated that the CO is a chronic case of Bronchial Asthma since 1988 and upon being posted to a humid station the CO has duly represented.
(c) It may kindly be noted that the Officer till 1996 was stationed at Silchar i.e. even after he has been a Chronic case of Bronchial Asthma (since 1988). The humidity levels, at Silchar in Assam and Mumbai, are comparable and if the officer could serve at Silchar then he can as well serve at Mumbai.
(d) It was clear from the Part I Order No 48 dated 07 Jun 1999 of DE (W) Delhi Cantt that the CO should collect the movement order from the office of GE. The CO had willfully not collected the movement order and even disobeyed to take the movement order vide his letter dated 18 Jun 1999. Since CO failed to collect the movement order, so the same was dispatched by post for which CO is fully responsible.
(e) The IO has wrongly termed the case as subjudice. The OA filed in Hon'ble CAT Delhi was dismissed at the admission stage itself. So the move order issued to CO was valid.
(f) Since CO has not submitted any medical certificate for his absence period the question of referring to medical auth for genuinely sick or otherwise does not arise in view of above, the movement order issued to CO is valid therefore his absence from duty is proved.
(g) Since the CO has failed to report for duty even after receipt of valid movement order his absence period is proved beyond doubt.
(a) An inquiry was ordered against the officer. Charged Officer evaded one man Inquiry by manipulating to say that the IO will be biased against him just because the IO appointed was initially CWE Karanja and then and then DCWE Karanja, which was absolutely uncalled for.
(b) The Charged Officer came to Mumbai twice and dramatized his sickness by getting admitted in a local hospital.
(c) Further the Charged Officer kept on residing at Delhi for four years and did not proactively approach the medical authority to issue medical fitness/status of health. He did not produce latest documentary evidence in support of his illness.
(d) Further Charged Officer had been declared unfit for humid, HAA, Extreme cold climate etc vide 160 MH, C/O 99 APO dated 20 Sep 94 but he continued in his duty station till his turnover which was due in normal course i.e. after 2-3 years in Jan 96. Also the above certificate was not reviewed after the completion of three years hence its validity had expired.
(e) It is seen from the correspondence on the subject that the Officer has involved himself too frequently in letter writing and much avoidable correspondence. He has thus tried to confuse the issue and has tried to take undue advantage of various provision and procedure contained in CCS Rules.
NOW THEREFORE an opportunity is given to Shri Ashok Kumar Arora, AE B/R to submit his representation if he so desires against the charges enumerated above on the basis of which undersigned disagrees with the findings of Inquiry Officer. A copy of Inquiry report is enclosed. The representation should be submitted within 15 days of receipt of this order and decision will be taken accordingly.
5. On a detailed representation, the DA proved the charge and punished applicant with minor penalty of censure with the following observations: AND WHEREAS Shri Ashok Kumar Arora, AE B/R submitted his representation dated 27 May 2004 bringing out the following points: (b) That the disagreement order is discriminatory and biased against the CO since it is contrary to all facts and matters examined and recorded by IO. (c) That on the basis of MC dated 20 Sep 94 of 160 MH C/O 99 APO his posting to Pathankot was cancelled in Dec 97. Thus the reasons for non acceptance of the same report has not been addressed.
AND WHEREAS the undersigned has carefully considered the representation of CO dated 27 May 04 and the following is stated in this regard: (a) That CE WC is competent to issue his disagreement order under CCS (CC&A) Rules-1965.
(b) That disagreement order is not discriminatory rather it is just, fair and equitable representing the true picture of the case. It has been issued after due deliberation on the fact and circumstances of the case.
(c) The CO has produced medical cert of Sep 94, which cannot be treated as latest medical report. The CO has failed to produce the latest medical report for consideration as his earlier MC cannot be considered permanently.
AND WHEREAS the undersigned after careful consideration of the charge sheet, defence statement, oral inquiry report, comments/recommendation of CE Southern Command on disagreement order, representation of CO on disagreement order, other related facts and circumstances of the case has come to the conclusion that charges levelled against the said Shri Ashok Kumar Arora, AE B/R are proved.
NOW THEREFORE, the undersigned in exercise of power conferred vide Sub Rule 2 (a) of Rule 12 of CCS (CC&A) Rules 1965 hereby impose the penalty of 'CENSURE' upon Shri Ashok Kumar Arora, AE B/R with further direction that absence period from 23 Jun 99 to 26 May 2003 be regularized as EOL without Medical Certificate as per Leave Rule.
6. The appellate authority affirmed the punishment, giving rise to the present OA.7. Shri S.K. Gupta, learned Counsel appearing for applicant, at the outset, states that the disagreement arrived at by the DA is not tentative but a final view of the matter with a pre-determined mind where the charges are established, the opportunity to show cause is an empty formality and has relied upon the decision of the Apex Court in Yoginath D. Bagde v. State of Maharashtra to buttress his plea.
8. Learned Counsel would also contend that whereas it is mandated upon the DA to act independently while awarding punishment, the comments of the Chief Engineer, Southern Command has been called for by the DA, which does not form part of the record and as the same has been taken behind the back of applicant, without affording him an opportunity to be served such comments and an opportunity thereafter to rebut, the punishment imposed is on extraneous grounds.
9. Shri Gupta has also stated that whereas second enquiry has been conducted on 6.12.2001 but no such orders have been issued.
Accordingly, it is stated that a de novo enquiry cannot be countenanced.
10. Learned Counsel would also contend that once the respondents themselves have posted applicant back from Silchar the medical certificate issued whereby applicant has been found permanently unfit to be posted at a place where climatic conditions are not apt for an asthmatic patient, posting him to Tunir has to be preceded by the fitness of applicant to be examined by the respondents as per the decision of the High Court in RA-61/1999 in CWP No. 4691/1999 on 24.8.1999, non-consideration of the aforesaid and not subjecting applicant to medical examination is malafide and it is also contempt of the High Court.
11. Learned Counsel would contend that applicant has been punished by an incompetent authority, which is not in accordance with law.
12. On the other hand, Shri B.S.Jain, learned Counsel appearing for respondents has vehemently opposed the contentions and stated that medical record of applicant of 1994 would hold good only for three years and for want of any application for leave during the four years of his absence and as no medical certificate has been furnished, applicant has no right to be accorded leave. As the signatures of applicant were not appended on the medical leave, it is doubtful and as it is stated that leave of applicant was rightly treated as EOL and he has been let off on a very minor punishment.
14. We have carefully considered the rival contentions of the parties and perused the material on record.
15. In order to be a willful absence it has to be established before hand that absence from duty of a Government servant is without any justified cause and is intentional. In the present case, the medical certificate issued by the authority irrespective of whether the signatures of applicant are appended or not is an authentic proof, which has been basis of his transfer from Silchar where since inception of his posting he has not been feeling comfortable. He has been declared unfit to be posted at a place of climatic humid conditions and the fact that the ailment of asthma is a permanent incurable disease, which is best treated by prevention as per the Manual on Asthma and its Repercussions appended to the OA. The certification of bronchial asthma and unfitness of applicant to be posted in humid cold conditions is a certificate, which would hold good not only for a period of three years but a permanent incapacitation to be posted at the places of humid conditions. The aforesaid medical record was instrumental and the basis of applicant's transfer from Silchar to Delhi and thereupon applicant's transfer to Tunir when objected to by applicant on medical grounds has not been considered, though a challenge against this transfer has failed both before the Tribunal and the High Court, yet in Review the orders of the High Court directed that before posting applicant his medical unfitness has to be examined, has been dealt with in a very arbitrary manner by rejecting the request, without subjecting applicant to a medical examination. Once a certificate regarding his medical conditions has been certified and issued by the respondent medical authority, it is very strange that they are not believing their own officers who have given the report. Accordingly, this condition precedent when not taken into consideration the applicant's justification to stay back in Delhi and when he reported at Mumbai he had to be hospitalized when observed to be dramatization of applicant is misconceived and is not well founded, as this medical record has not been questioned by subjecting him immediately to a medical examination.
The certificate of the hospital as per Rule 19 of the CCS (Leave) Rules, 1972 was very much admissible.
16. We have also scanned through the record produced by respondents and find that on 16.4.2003 applicant was transferred from Tunir to Delhi on medical grounds without prejudice to departmental action. It is an act of approbating and reprobating by the respondents whereas medical record is questioned and on the same basis, i.e., the certificate issued in 1994 applicant is being posted back to Delhi speaks volume about respondents' action, which is not only unfair but also averse to all human approach. By transfer of applicant on medical grounds from Tunir to Delhi this has been established that applicant was unfit to be posted at a place where climatic conditions were not apt as per his ailment, which has been certified by the respondent medical authority.
17. Insofar as disagreement Note is concerned, we have perused the enquiry report and find that the EO has not held applicant guilty of the charge relying upon the medical record, yet the DA while disagreeing on article-I of the charge on the ground that once applicant was at Silchar where climatic conditions were not apt, yet he remained there was oblivious of the fact that despite applicant's persistent requests ultimately on his examination in 1994 he was transferred on being unfit as per the climatic conditions in 1996 shows that applicant's posting at such places was debarred permanently.
18. The DA has also contended that applicant has not submitted any medical certificate for the absence period. The absence period of applicant was not strictly as absent from duty but as his posting has been done without ascertaining his medical status and to a place where the conditions are apt, on perusal of the departmental record we find that applicant has from time to time apprised his medical conditions to the respondents and as it is an established case of asthma, for which a continuous treatment has been prescribed, which does not need, from time to time, medical assistance as it is the medication which prevents recurrence of asthma, non-submission of the medical record is not a valid ground to disagree with the conclusions of the EO. Moreover, applicant persistently asked his posting to be cancelled.
19. As regards DA disagreement on the ground that applicant has dramatized his signatures while admitting in local hospital, is not a charge, yet without subjecting applicant to second medical examination a medical certificate from Government hospital is very much admissible as per the CCS (Leave) Rules, 1972.
20. It appears that the DA has pre-determined the issue by holding the charge as proved. This makes the disagreement Note as not being tentative but a final view of the matter where the opportunity afforded is only an empty formality and a post-decisional hearing, which cannot be countenanced in the light of the decision of the Apex Court in Yoginath D. Bagde (supra).
21. We also find that whereas the DA on disagreement was confronted with a detailed representation of applicant, yet he has not taken all the contentions of applicant into reckoning and on the basis of an extraneous matter behind the back of applicant relying upon the comments of the Chief Engineer, Southern Command passed this order without application of independent mind and being mechanical without reasons such an order cannot be countenanced in law, as once the enquiry report is in favour of the delinquent official, in disagreement when an employee makes a detailed representation, his contentions are to be dealt with in a reasoned manner effectively, failing which there would be denial of a reasonable opportunity. The role of the DA has been effectively defined in Director (Marketing), Indian Oil Corporation Ltd. and Anr. v. Santosh Kumar . Moreover, when a discretion is vested in a quasi-judicial authority, it has to be exercised judiciously, which shall not be apt in law unless a reasonable opportunity is afforded to the concerned by taking into consideration all his contentions and rebutting it by reasoned order, as held by the Apex Court in Union of India v. Kuldeep Singh .
22. As regards treatment of period of absence as EOL without medial certificate, as the posting of applicant was done without ascertaining his medical unfitness, he cannot be blamed for remaining absent willfully, rather his absence in the circumstances on account of not joining duty is due to the recommendations of the respondent medical authority and as despite transferring applicant from Silchar to Delhi the report has not been considered and applicant was not reexamined as per the High Court's decision as to his medical unfitness, this posting to Tunir and non-joining would not culminate into misconduct to warrant treatment of the period of absence from 23.6.1999 to 27.5.2003 as a break in service, entailing even loss to the retiral benefits as on EOL the aforesaid would not be reckoned as qualifying service for want of any stipulation in the order as to treatment of this period as qualifying service, applicant has been prejudiced in his pension and other retiral benefits.
23. As regards appellate order, we find that this aspect of the matter has not been gone into by the appellate authority and there is no consideration on the alleged absence period being treated as EOL, causing break in service. For non-application of mind on this aspect, the appellate order is rendered illegal in the light of the decision of the Apex Court in Narinder Mohan Arya v. United Insurance Co. Ltd. and Ors.
24. In the result, for the foregoing reasons, leaving other grounds open, this OA is partly allowed. Impugned orders are set aside.
Respondents are directed to accord all benefits for the period from 23.6.1999 to 27.5.2003 to applicant, including retiral benefits.
However, we do not agree for grant of any interest to applicant.
Respondents shall comply with the aforesaid directions within a period of two months from the date of receipt of a copy of this order. No costs.