Promilla Issar, Member (A):— The applicant has filed this OA praying for the following reliefs:—
“i) ORDER dated 30.7.2010 (Annexure A-1) passed by Respondent no. 3 whereby penalty of removal from service has been imposed upon the applicant, may be quashed.
ii) Order dated 6.10.2010 (Annexure A-2) passed by Respondent no. 2 whereby the appeal filed by the applicant against the order dated 30.7.2010 has been rejected, may be quashed.
iii) Directions may be issued to the respondents to reinstate him into service as if the impugned orders have never been passed, with all consequential benefits including pay and allowances and arrears thereof along with interest thereon from the date the same became due till the date of actual payment.”
2. The projected case of the applicant is that he had joined service in the M/s Semi-Conductor Complex Limited (SCL) on 20.9.1984 He has stated that while he was working as Senior Assistant (P&S), he got affected by L5-SI disc space problem in Lumbar Spine in the year 2008 and could not attend office for a long time. He has stated that he kept on informing the authorities about his illness through telegrams, but his request for grant of leave was not accepted by the authorities. However, a charge-sheet dated 23.4.2009 was issued to the applicant for remaining absent without sanction of leave. He has stated that he was declared fit to join duty by the PGI on 17.4.2010 and since 18.4.2010 was a holiday, he submitted his medical fitness certificate, issued by the PGI, along with joining report, on 19.4.2010 When he came to know that an inquiry was being conducted against him, he submitted a representation dated 19.4.2010 to the Inquiry Officer informing him that he was not allowed to join duty in SCL and joining report was sent by him through UPC. He has stated that in response to notice dated 24.4.2010, he appeared before the Inquiry Officer on 5.5.2010 His contention is that while submitting the inquiry report on 21.5.2010, the Inquiry Officer recorded that the applicant had accepted the charges unconditionally without any pressure or coercion and that he had also admitted his mistake of not providing his postal address to SCL for official records whereas he had not made any such confessional statement. Thereafter, inquiry report was supplied to him with Memo. dated 9.6.2010, proposing a penalty of removal from service upon him. He had submitted a representation dated 20.7.2010 in response to show-cause notice dated 9.6.2010, explaining that he kept on sending intimation of his illness through telegrams and registered letters and that the inquiry was held in a mechanical manner. The grievance of the applicant is that the disciplinary authority imposed the penalty of removal from service upon him vide order dated 30.7.2010 without taking his representation into account. He submitted an appeal dated 7.9.2010 against the order dated 30.7.2010, pointing out a number of irregularities in the procedure adopted in the inquiry, but the same was rejected vide order dated 6.10.2010 According to the applicant, the impugned orders are arbitrary, non-speaking and legally not sustainable. His contention is that the order of the disciplinary authority is violative of the principles of natural justice, as no opportunity has been granted to him during the course of the inquiry and the same has been concluded on the basis of his non-existent admission. Hence this OA.
3. The applicant has also filed MA 236/2012 vide which he has placed on record the correct copy of the charge-sheet dated 23.4.2009 as Annexure A/4, in which he has been charged with absenting himself from service w.e.f 7.3.2008 onwards without prior approval of the competent authority.
4. The respondents have stated in their reply that the applicant has not approached this Tribunal with clean hands and has tried to suppress material documents and information available on record. They have stated that since he was on continuous unauthorized absence from duty w.e.f 7.3.2008, a charge-sheet dated 23.4.2009 was issued through registered cover at his local and permanent home address as was available with them. However, the said letter was received back undelivered by the postal authorities. Thereafter, they got a public notice issued on 22.9.2009 in the newspapers, advising him to appear and collect the charge-sheet. They have stated that since the applicant failed to appear, hence, the disciplinary authority proceeded further with the inquiry and appointed an Inquiry Officer to conduct the inquiry into the charges levelled against the applicant in the charge-sheet dated 23.4.2009 They have further stated that the Inquiry Officer also issued several letters, indicating the date of inquiry at his last known address, but the same were received back undelivered. Thereafter, a communication was received from the applicant indicating his new address and the Inquiry Officer, vide Memo. dated 24.4.2010 again sent the charge-sheet dated 23.4.2010 at his new address vide which a final opportunity was given to him to participate in the inquiry proceedings on 5.5.2010 According to the respondents, the applicant participated in the inquiry proceedings on 5.5.2010 and made a confessional statement in writing on 5.5.2010, unconditionally admitting all the charges levelled against him in the charge-sheet dated 23.4.2009 and stated that he was doing so without any pressure or coercion. They have stated that the Inquiry Officer offered him the opportunity to cross examine the prosecution witnesses which he refused and consequently, the Inquiry Officer closed the inquiry and submitted the inquiry report to the disciplinary authority.
5. They have further stated that the disciplinary authority has imposed the punishment of removal from service upon the applicant under Rule 8(viii) of the DOS Employees (CCA) Rules, 1976 after taking into consideration the confessional statement of the applicant in writing, the inquiry report, representation of the applicant and his previous conduct. They have also stated that the appeal of the applicant was also rejected by the appellate authority by passing a detailed order after carefully taking into consideration the points raised by him in his appeal. Consequently, they have prayed for dismissal of the OA.
6. The applicant has filed a rejoinder, generally reiterating the averments made in the O.A
7. We have heard the learned counsel for the parties and perused the record of the case.
8. The first two grounds taken by the applicant are that the order of removal has been passed on the wrong premise that he had admitted the charges without pressure or coercion and had been sending his leave applications directly or through a friend during the said period of absence. However, we find that during the hearing of the inquiry on 5.5.2010, the applicant himself has signed on the proceedings in which IO has recorded that he had admitted his charges without any pressure or coercion as follows:—
“Shri Purshotam Lal accepted the charges unconditionally made in the charge-sheet (Memo SCL/PGA/8508.CL01094/2009/1917/119 dated April 23, 2009) without any pressure or coercion.
Inquiring Authority asked Shri Purshotam Lal for cross examination of witness but Shri Purshotam Lal replied in negative.
The Presenting Officer presented the second witness Shri N.P Singh in the case. Shri N.P Singh confirmed that he has not received any authorized leave from Shri Purshotam Lal pertaining to the said period. The same was confirmed by Shri Purshotam Lal that no such leave application was got sanctioned by him and no medical certificate was provided. The Inquiring Authority asked Shri Purshotam Lal to cross examine the Presenting Officer to which Shri Purshotam Lal refused.
Shri Purshotam Lal also confirmed that despite his awareness about CHSS in existence at SCL he has been under treatment from non-empanelled private practitioner
P.O asked why medical certificate was not submitted earlier to which he admitted his mistake.”
Exhibit D(2) in the inquiry which has been quoted above, in the proceedings on 5.5.2010 and signed by the applicant on that date, is a letter from the applicant himself addressed to the IO in which he has stated as follows:—
“I, Purshotam Lal, staff code no. CL01094 came to SCL today for first date of inquiry and present myself and admit all charges which are against me vide memorandum dated 23.4.2009.ed 24.4.2010 as mentioned as subject above.
I therefore, request you to please give me one more chance to serve in SCL.”
From this it is clear that the first ground taken by the applicant falls and does not support his argument and in fact is totally contrary to his emphatic statement in the affidavit that he had not admitted the charge.
9. The second ground taken by the applicant is that the inquiry proceedings on 5.5.2010 were conducted in an arbitrary manner and there had been no admission on his part. In view of what has been discussed in the previous para, this ground also does not hold good.
10. The third ground taken by the applicant is that in the show cause notice given to him along with a copy of the inquiry report, the proposed punishment had already been suggested and therefore his representation against the same had become a mere formality and therefore this had vitiated the whole process. In support of his argument he had cited the judgment in the case of Ashok Kumar Narula v. Union of India - OA No. 23.PB/2009 decided on 18.3.2010 while placing reliance on judgment dated 8.5.2008 of Principal Bench of this Tribunal in TA no. 63/2007 titled Mohinder Singh v. Vice Chairman, Delhi Development Authority. However, we find that these judgments are distinguishable on facts and once the admission of the applicant was there, then it cannot be said that the mention of the punishment in the show cause notice had prejudiced the cause of the applicant.
11. The next ground taken by the applicant is that various past incidents of absence relating to him have been included in the charge-sheet just to prejudice the mind of the punishing authority whereas he had already been punished for those earlier and therefore this has prejudiced his cause in the present case. However, we find that the said period mentioned in the charge-sheet has also been mentioned in the final orders and therefore it is not as if the earlier periods of absence have been considered as the basis for the present punishment. However, these have been used as an example to show his incorrigible behaviour, whereas the punishment relates to the said period of absence between 7.3.2008 to 30.7.2010 which was mentioned in the present charge-sheet.
12. The next ground taken by the applicant is that he was not given any opportunity of hearing before the final order was passed. It is apparent that there has been proper application of mind in the present case which is different from other cases in which detailed reasoning is required to be given, since the present case has been dealt with on the basis of the clear and unconditional admission of guilt made by the applicant on 5.5.2010 Therefore, it is distinguishable from the facts of the case cited in the OA in respect of this ground i.e Ranjit Singh v. Union of India, JT 2006 (4) SC 376.
13. The applicant has also talked about being the sole bread winner for his family and his service with the respondents since 1984. This ground is more on the lines of a mercy plea and we do not find any grounds or jurisdiction to consider the same, specially in view of what has been stated in the preceding paras.
14. The next ground taken by the applicant is that the punishment is shockingly disproportionate to the charge levelled against him. In this case it cannot be said that the unauthorized absence of about 2 years and 4 months is a minor misconduct. In fact it is a major misconduct for which the punishment of removal is not disproportionate. In this respect an additional factor that has weighed with us is that the applicant did not give his correct address to his employer, even though it is his permanent home address given by him and during the course of inquiry also he gave another address which also turned out to be misleading and wrong, because the letter sent to the said new address also came back undelivered. Here it is interesting to note that the address from which the letters came back undelivered as mentioned in the documents enclosed with the reply of the respondents, is the same address given by him while filing this OA. It means that he was deliberately avoiding the service of any letter of his employer during his unauthorized absence, which actually compounds his misconduct. Therefore, we find that the punishment given is proportionate to the misconduct. However, as per law, it could not have been given retrospective effect. Therefore, this part of the said impugned order is quashed and set aside and consequently it will take effect from the date of issue of the punishment order by the Disciplinary Authority, who is also directed to take an appropriate decision as to how the intervening period and the period of absence is to be treated.
15. Consequently, in the totality of the facts and circumstances of this case, this OA has been found to be devoid of merit and is accordingly dismissed except that it will take effect from the date of issue of the punishment order by the Disciplinary Authority who is also directed to take an appropriate decision regarding how the intervening period and the period of absence is to be treated, within a period of 3 months from the date of receipt of a copy of this order. No order as to costs.