Rajwant Sandhu, Member (A).
1. This Original Application has been filed under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:-
(i) That Memo of Charges dated 25.04.2011, Annexure A-1 be quashed.
(ii) That the enquiry report dated 20.01.2012, Annexure A-5 be partially quashed and set aside.
(iii) That the illegal, arbitrary and unjustified impugned punishment order dated 16.07.2012, A-12, impugned appellate authority order dated 21.03.2014, Annexure A-16, 29.04.2014, Annexure A-17 and order dated 01.01.2015, Annexure A-20 of punishment of ‘censure’, treating the period of leave applied for as without pay and 'dies non' from 27.12.2010 to 29.04.2011 for the purpose of postponement of annual increment and ACP/MACP, and retirement benefits like Pension, Gratuity, etc. imposed upon the applicant by the Disciplinary Authority and Appellate Authority may please be ordered to be set aside and quashed and the respondents may be directed to sanction the leave of kind due from 27.12.2010 to 29.04.2011 and the her salary for the defined period may be released.
(iv) That the damages, compensation and costs be imposed against respondents and awarded in favour of the applicant for causing undue harassment, mental torture and waste of time by using and misusing their power and authority.
2. It is stated in the OA that impugned orders have been passed in an unjustified and unreasonable manner, in the facts and circumstances of the case, on the basis of inquiry proceedings wherein the 'Inquiry Officer and Presenting Office realized that her problem was genuine. She could not join her duty due to family problem', and further in violation of CCS (CCA) Rules, 1965 and also in violation of principles of natural justice. The main prosecution witness, respondent no.4 clearly admitted in his cross examination that the applicant had applied for leave in advance and respondent no.4 did not know the reasons for which leave was applied for or extension sought. The applicant had applied for leave because the leg of her brother, who was suffering from Gangrene due to diabetes, was amputated and he was staying with her at the ground floor house. Further, in terms of Instruction no.37 under Rule 14 of the CCS (CCA) Rules, 1965 read with Rule 14 (19) of the CCS (CCA) Rules, 1965, the copy of written brief was not provided to the applicant nor she was called upon to file her written brief under the CCS (CCA) Rules, 1965 and the respondent no.3 has submitted his ex-parte report without taking into consideration the written arguments of DO. Therefore, ex-parte conclusion had been drawn. The enquiry proceedings were vitiated by violating the rules and instructions on the subject of providing opportunity of cross-examination, providing written brief of the prosecution, if any, to the applicant and the applicant was never asked to make her statement or lead evidence or submit written brief. Therefore, the Inquiry Officer, respondent no.4 submitted an ex-parte report in violation of CCS (CCA) Rules, 1965 and the law laid down on the subject and without any evidence worth consideration to conclude that the alleged charges stand proved. The mere absence from duties with prior and due information, because the earned leave, which was due to the applicant was not sanctioned, does not amount to misconduct much less wilful absence from duties under the CCS (Conduct) Rules, 1964. Therefore, the issuance of Memorandum of Charges dated 25.04.2011 itself is blatant misuse of power and authority under Rule 14 of the CCS (CCA) Rules, 1965. The applicant had duly applied for extension of leave from time to time and never absented without information.
3. In the grounds for relief it has, inter-alia, been stated as follows:-
(i) Because the applicant has been validly and continuously applying for the extension of earned leave as she had to take care of her brother whose leg had to be amputated, but the respondents had not been acceding to her requests and were denying the leave to the applicant without reason.
(ii) Because the Inquiry Officer and the Presenting Officer had validly admitted in the enquiry report, Annexure A-5, that the problem of the applicant was genuine and she could not join her duty due to family problem, hence, in view of this established fact charging the applicant with wilful absence and imposition of major punishment was totally unjustified on the part of the respondents. In view of the established and proved facts and circumstances of the instant case the respondents should have considered the case of the applicant sympathetically and should have left her with imposition of minor penalty by way of either 'censure' or 'warning'.
(iii).Because the Inquiry Officer has held the enquiry in a totally biased, arbitrary and illegal manner, by flouting all the rules of the enquiry under the CCS (CCA) Rules, 1965 and also in breach of the principles of natural justice. The IO had taken on record and relied upon the statements and documents of prosecution witnesses without affording any opportunity of evidence of defence, which is illegal, unconstitutional and arbitrary and thus the IO had vitiated the entire enquiry proceedings. The IO vitiated the procedure to conduct the enquiry under Rule 14 (17) of the CCS (CCA) Rules, 1965.
(iv) Because the 2nd show cause notice dated 06.02.2012 was issued without the enquiry report having been placed before the Disciplinary Authority for its consideration and acceptance/rejection and for recording and forwarding tentative reasoning of disagreement/agreement with the findings of Inquiry Officer as was required under Rule 15 (2) of the CCS (CCA) Rules, 1965.
(v) Because it is provided in OM dated 07.01.2011 that as per Rule 15 (1) of CCS (CCA) Rules, 1965 after the receipt of the Inquiry Report, the Disciplinary Authority, is required to consider the Inquiry Report and satisfy himself that the inquiry has been conducted as per the detailed procedure prescribed under Rule 14 of CCS (CCA) Rules, 1965. If the Disciplinary Authority finds any breach of the prescribed procedure, it is required to remit the case back to the Inquiry Officer for reasons to be recorded in writing for further inquiry and report. Charged Officer was also required to be given copy of Prosecution Brief before seeking his Defence Brief and that Inquiry Officer has also observed the requirement of general examination of the Charged Officer as per Rule 14 (18) of CCS (CCA) Rules, 1965. If, however, Disciplinary Authority finds no irregularity in the conduct of the proceedings, it may go through both the Report as also the evidence on record to form its tentative views regarding the findings in the Inquiry Report. The Inquiry Report is, thereafter, required to be forwarded to the Charged Officer alongwith the tentative views of the DA as also the disagreement note, where required. However, in the instant case the said procedure had been given a go by resulting in serious prejudice to the applicant.
(vi) Because in terms of Instruction No.37 under Rule 14 of the CCS (CCA) Rules, 1965 read with Rule 14(19) of the CCS (CCA) Rules, 1965, the DO should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief. Furthermore in an ex-parte enquiry the enquiry officer was required to supply copy of each statement and documents produced during the course of enquiry proceedings, but none has been supplied in the instant case. Hence, the IO has violated the rules and guidelines with impunity. Therefore, the ex-parte conclusions drawn in enquiry report cannot be acted upon and relied upon. The enquiry proceedings have been vitiated by violating the rules and instructions on the subject.
4. In the written statement filed on behalf of respondents, preliminary objection has been taken that the present OA is not maintainable since the Tribunal had disposed of OA No.899/CH/2013 vide order dated 30.05.2014 and the applicant did not raise any objection at that time. The order dated 29.04.2014 was dispatched to the applicant on 01.05.2014. If the applicant had any objections/doubts regarding the same, she could have raised these at that time. The applicant remained silent for more than 2 months and raised this objection regarding delivery of letter dated 29.04.2014 on 01.08.2014, that is only after receiving the amount of Rs.29118/- on 18.07.2014. The raising of the claim in the representation dated 01.08.2014 and in the present OA appears to be an afterthought. As such the OA deserves to the dismissed.
5. It is further stated that the main challenge in the present OA is that she was not delivered the letter dated 29.04.2014, whereas this letter was dispatched on 01.05.2014 to all concerned including the applicant, which is evident from the perusal of letter dated 29.04.2014, (Annexure A-17). Keeping in view its seriousness, the matter has now been thoroughly examined and as per the office report the said letter was received by one Sh. Sushil Kumar, UDC of Account Section on 08.05.2014, and the same was handed over to the applicant on 08.05.2014 itself. The copies of the letters written by the Institute to Sh. Sushil Kumar and the reply submitted by the said official is appended as Annexure R-1 (Colly). This clearly shows that the applicant was in possession of the letter dated 29.04.2014 before 30.05.2014. In any case the order of penalty is perfectly legal and valid. The penalty was altered to 'censure' and the absence period was treated as 'Dies Non'. The charge of absence without sanctioned leave was proved and in fact the applicant admitted her mistake.
6. It has further been stated that the period of absence of duty of Ms. Sushma Bhalla w.e.f. 27.12.2010 to 29.04.2011 was rightly treated as 'dies non' although the competent authority has altered the penalty of reduction of her pay by one stage lower in the time scale to 'Censure'. It has categorically been mentioned in the office order dated 29.04.2014 that the remaining contents of the Institute’s above cited order would remain the same. The period of the applicant’s absence was treated as 'dies non' in the earlier order dated 16.07.2012 which is also mentioned in the office order dated 29.04.2014. The applicant filed representation dated 01.08.2014 in which she sought copies of certain documents viz. office order dated 29.04.2014 and letter No.V-17020/84/2012-ME-II dated 14.03.2014 which were supplied to her on 26.08.2014. The same were in fact dispatched and supplied earlier. Further, the Tribunal vide its orders dated 21.11.2014 directed that the applicant’s representation dated 01.08.2014 be decided. The same was decided and she was informed vide office letter dated 01.01.2015.
7. In the replication filed on behalf of the applicant, it has been denied that the copy of office order dated 29.04.2014 was dispatched to the applicant on 01.05.2014. It is stated that on 30.05.2014, this Tribunal disposed of the OA no.899/CH/2013 on the verbal statement of counsel of respondent Institute but the respondents even then did not place on record copy of the order dated 29.04.2014. The respondent Institute has fabricated and concocted a story that the copy of office order dated 29.04.2014 was supplied to the applicant. The applicant was posted in Advanced Pediatric Centre at the relevant period of time and the Clerk who has allegedly been given or had received copy of office order dated 29.04.2014 on behalf of applicant, was posted in Accounts Branch, Administrative Block. The applicant had no reason to visit Administrative Block including for marking of her attendance, which was marked in Nehru Hospital. The concerned Clerk had admitted that no receipt had been taken from the applicant while handing over the copy of Office Order dated 29.04.2014 on 01.05.2014. It is a fact that the respondent Institute had not provided the copy of Office Order dated 29.04.2014 at the time of disposal of OA No.899/CH/2013 on 30.05.2014 with mala fide intentions and even did not supply the copy to applicant to keep her in the dark about the consequences of office order dated 29.04.2014.8. In the sur-reply filed on behalf of the respondents regarding allegations made in the replication with regard to delivery of office order dated 29.04.2015, it is stated that the applicant has alleged that she was posted in fee section in Advanced Pediatric Centre and not in Accounts Branch. The applicant has tried to give an impression that the fee section of APC has no connection with the Accounts Branch. In this regard, it is stated that Ms. Sushma Bhalla, Clerk was transferred to Accounts Branch vide this office order No.EII(I)-PGI-2010/F-19 dated 10.08.2010 from O/o Chief Nursing Officer, PGIMER, Chandigarh (Annexure R-2). The Accounts Branch deputed Ms. Sushma Bhalla at Fee Counter in Advanced Pediatric Centre to perform her duties which is part and parcel of Accounts Branch. All letters addressed to officials working in Fee Courter of Institute are sent to Accounts Branch, PGIMER, Chandigarh. As such, the promotion order dated 30.05.2014 (Annexure R-3) of Ms. Sushma Bhalla was also sent to Accounts Branch and even at that time she was deputed in Advanced Pediatric Centre. The penalty order of Ms. Sushma Bhalla dated 16.07.2012 (Annexure A-12) was also sent to Accounts Branch whereas even at that time, she was deputed by Accounts Branch in New OPD to perform her duties. Further, the penalty order dated 29.04.2014 was also sent to her department i.e. in Accounts Branch, PGIMER, Chandigarh which was also handed over to Ms. Sushma Bhalla, Clerk, Accounts Branch by Sh. Sushil Kumar, UDC, Accounts Branch. The statement of Sh. Sushil Kumar and the documents already placed on record clearly show that the document dated 29.04.2014 was received by Sh. Sushil Kumar on 08.05.2014 and as per his statement it was delivered to the applicant on the same date. The answering respondent had examined the matter thoroughly in view of the serious allegation raised by the applicant.
9. Arguments advanced by the learned counsel for the parties were heard. Learned counsel for the applicant stated that the disciplinary proceedings against the applicant had not been conducted in accordance with the CCS (CCA) Rules, 1965. Although in appeal the penalty imposed upon the applicant had been reduced from reduction of her pay by one stage lower in the time scale for a period of one year with cumulative effect to minor penalty of 'censure' but the period of her absence from duty w.e.f. 27.12.2010 to 29.04.2011 had been treated as ‘dies non’. He stressed that this amounted to double penalty since for this period, the applicant would not get any salary and the period would also not be counted for increments and benefits under the ACP/MACP. Learned counsel further stated that as per the inquiry report itself it had been held that the applicant’s problem was genuine and in this view of the matter such a harsh penalty should not have been imposed upon her. Learned counsel further stated that although the earlier OA No.899/CH/2013 was disposed of vide order dated 30.05.2014, when learned counsel for the respondents stated that in appeal the penalty imposed upon the applicant had been reduced to 'censure' and the counsel for the applicant had not objected to the disposal of the OA, at that time, the applicant was not aware that the period from 27.12.2010 to 29.04.2011 had been treated as ‘dies non’. It was only when the applicant obtained copy of this order that she filed the instant OA.
10. Learned counsel for the respondents stated that the present OA was not maintainable as the very same relief as had been sought through earlier OA No.899/CH/2013 which had been disposed of vide order dated 30.05.2014 and at that time counsel for the applicant had not objected to the disposal of the OA. Learned counsel further stated that it had been established by the respondent Institute that the applicant was well aware of the content of the order dated 29.04.2014 much earlier than August 2014 when she claimed that copy of this order had been received by her. He stated that the absence of the applicant from duty had been established as per the enquiry report, applicant had confessed regarding her unauthorised absence and had stated that she would not repeat this mistake. Hence, the period of wilful absence w.e.f. 27.12.2010 to 29.04.2011 had rightly been treated as ‘dies non’.
11. We have given careful consideration to the matter. In view of the disposal of OA No.899/CH/2013 vide order dated 30.05.2014, which was passed with the consent of learned counsel for the applicant, the relief sought vide para 8(ii) & 8(iii) regarding quashing of memo of charges dated 25.04.2011 and enquiry report dated 20.01.2012 cannot be pressed through the present OA. The impugned order dated 16.07.2012 imposing penalty for reduction of pay by one stage lower for one
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year has been set aside by the President of PGIMER, the Appellate Authority. Regarding period of absence from duty from 27.12.2010 to 29.04.2011 being treated as ‘dies non’ by Disciplinary Authority, the same was endorsed by the Appellate Authority. We do not deem it necessary to adjudicate on the aspect of order dated 29.04.2014 being delivered to the applicant before 30.05.2014 or not. The question as to whether the period of absence from duty w.e.f. 27.12.2010 to 29.04.2011 should have been treated as ‘dies non’ is examined on merits. 12. From the material on record it is seen that the applicant vide application dated 16.12.2010 applied for granting of earned leave w.e.f. 16.12.2010 to 24.12.2010 and her leave was sanctioned vide order dated 15.02.2011. She requested to extend her leave from 27.12.2010 to 05.01.2011 vide letter dated 27.12.2010. Her leave was not recommended by the Accounts Officer and applicant was informed through telegram dated 12.01.2011, that she would be treated as wilfully absent from duty from 27.12.2010, and was directed to resume duty immediately, failing which disciplinary action would be initiated against her. The applicant continued to seek extension of her leave but the same was not sanctioned and she did not resume duty till 29.04.2011. It is clear that the applicant proceeded on leave without the same being sanctioned and continued to be on leave beyond 27.12.2010 without sanction of the same. This absence from duty was treated as 'wilful absence' and as per FR 17(A) the period of such absence was treated as ‘dies non’. The applicant cannot claim any right to have the period of absence treated as ‘leave of the kind due’ as pressed by her counsel. Hence, we do not find any ground for judicial interference in the order dated 29.04.2014. The OA is therefore rejected. 13. No costs.