K.V. Eapen, Member A
1. The applicant was working as a Watchman (Multi-Tasking Staff) in INS Dronacharya under the Southern Naval Command, Naval Base, Kochi. He was imposed the penalty of compulsory retirement vide the impugned order dated 21.02.2017 produced at Annexure A-5. He then submitted an appeal dated 05.04.2017 which was rejected by the order dated 10.10.2017, a copy of which has been produced at Annexure A-7. He is aggrieved by these orders and prays for a relief to quash them and to direct the respondents to reinstate him with consequent benefits including back wages.
2. Earlier the applicant had been issued with a charge memo as produced at Annexure A-1 dated 14.10.2015. In short, the three charges were as follows:-
1) Habitual absenteeism
2) Remaining on unauthorised absent from duty intermittently for a period of 253 days from 12.07.2014 to 13.08.2015.
3) Disobedience of lawful orders of his Superior Officer.
The list of documents by which the Articles of Charge were proposed to be sustained were given to the applicant by annexure-3 of the charge memo at Annexure A-1. Similarly, a list of witnesses by whom the Articles of Charge were proposed to be sustained were also furnished to him. On 16.02.2016 proceedings were conducted by the Inquiry Authority by way of a preliminary hearing as evidenced by a copy of the proceedings produced at Annexure A-2.
3. The applicant submits that during the above proceedings he had explained the circumstances leading to his absence but these had not been recorded completely. He further states that whatever statements he had made in front of the Inquiring Authority/Inquiry Officer as shown in Annexure A-2, have been taken as an admission of the charge by the Inquiring Authority. However, it is stated that it is evident from a reading of the proceedings that there was no unconditional admission of charge. At the end the Inquiring Authority had once again in Question 17 asked whether the applicant admitted the charges framed against him unconditionally. The applicant is recorded as replying “Yes. However, I would like to submit that I did not report for duty due to the circumstantial compulsion. Hence, I request that my absence for the said period may not be treated as willful disobedience.” He submits that there was an indication from the officers present that a lenient view would be taken if the charges were admitted by him unconditionally. Therefore, he admits that he agreed to the charges without understanding the consequences. However, based on the proceedings at Annexure A-2, the Inquiring Authority closed the inquiry as indicated at Annexure A-3 order sheet. It has been recorded therein in the presence of the Presenting Officer (PO) and the Delinquent Government Servant (DGS) (the applicant herein) that the DGS has stated that he did not wish to avail the facility of Defence Assistant (DA) and that he had also confirmed the receipt of charge memorandum. It was recorded that the DGS also had unconditionally admitted the three articles of charges levelled against him and hence it was decided by the undersigned to submit a return to the disciplinary authority. Accordingly, the inquiry was declared as closed. A copy of this order sheet dated 16.02.2016 was given to the Presenting Officer as well as the DGS (the applicant).
4. Based on the above proceedings at Annexure A-2 and A-3, the Inquiry Officer then prepared a report, which now the applicant contends was made on the basis of documents which were neither put to him nor marked in the Inquiry. In this report the applicant was found guilty of all charges and there was no consideration of any justification put forward by him. This Inquiry Report has been furnished at Annexure A-4. The Inquiry Report has initially brought out the charges and, after examination, the reasons for arriving at the finding has been indicated. From the report it is clear that the Inquiry Officer has relied on the inspected documents and it is noted that the DGS had not raised any objection in this regard. Further, it is also noted as regards the Article I of the charge memorandum that the DGS has admitted the first Article moved against him during hearing on 16.02.2016. In addition, the 'absent marked' in the copy of the attendance sheet proves that the DGS was absent during the said period. After evaluation of all the evidence in the indication, it was found that the DGS had been awarded penalties on 5 previous occasion for unauthorised absence amounting to a total of 402 days intermittently from May 2005 and subsequent dates right upto September, 2012. Further, he had also availed Extra Ordinary Leave (EOL) of 758 days during his service period. He also repeated his misconduct of being unauthorisedly absent. All of these aspects were apparently taken into account by the Inquiry Officer in coming to the conclusion on Article I of the charge that the DGS was an habitual absentee and that the charge was proved.
5. Similarly, in the case of the 2nd Article of Charge relating to unauthorised absence, the Inquiry Officer once relied again on the copy of attendance sheet as well as the evaluation of documentary evidence and also the DGS's failure to report for duty, remaining absent and no reply to show cause notice. The DGS was also recorded as having admitted to the second Article of Charge during the hearing as recorded in Annexure A-2. Thus, the Inquiry Officer came to the conclusion that the DGS did remained unauthorisedly absence intermittently during the period from 12.07.2014 to 01.02.2015. As regards the final charge of disobeying the lawful orders of Senior Officer as given in Article III, it was again recorded that the DGS has admitted to the charge during hearing. The listed documents were again defended upon by the Inquiring Authority along with the failure of giving any reply to the show cause notice for unauthorised absence of duty. The Inquiry Officer also did an evaluation of the deposition of documentary evidence where it was found that he had repeatedly ignored the written instructions of the Superior Officers given at various dates. Considering all the above, the DGS was found guilty of the third charge of disobeying the lawful orders of the superiors.
6. It is submitted that, based on the above findings of the Inquiry Officer, which was to the effect that all three charges were proved, the 3rd respondent, being the Chief Staff Officer (P&A) of the Headquarters, Southern Naval Command and Disciplinary Authority, then imposed the penalty of compulsory retirement on the applicant by Annexure A-5. The orders dated 21.02.2017 by the Disciplinary Authority reveal that there has been an examination against each charge and it is recorded that the DGS pleaded guilty unconditionally to each of the charges, referencing the concerned question that had been put to him in the record of proceedings at Annexure A-2. The penalty of compulsory retirement was then imposed and it was also ordered that the period of absence intermittently for a period of 72 days from 12.07.2014 to 01.02.2015 and continuously from 12.02.2015 to 14.07.2015 and 17.07.2015 to 13.08.2015 was to be treated as unauthorised absence resulting in lose of pay allowance for the said period.
7. After this, the applicant then submitted an appeal in one page against the disciplinary action as shown at Annexure A-6. This too was elaborately dealt with by the Appellate Authority (Respondent No.2 herein) vide the impugned order at Annexure A-7. At para 4 of the said order, the contents of the appeal was summarised by the
(a) The three articles of charge are one and the same
(b) The inquiry was completed in one day and not enough opportunity to defend the case was not given.
(c) He could not understand the proceedings which were recorded in English as he was not having adequate knowledge in English.
(e) He was not given an opportunity to appoint a Defence Assistant because the proceedings were completed on the day of preliminary hearing itself.
(f) The attendance register was not enclosed as evidence in the list of documents.
It is to be noted that the Appellate Authority examined all these points separately and has responded to each one of them. The Authority then came to the conclusion that there was no merit in the appeal and rejected the appeal as devoid of any substance which would entail interference with the Disciplinary Authority's Order.
8. The respondents have also filed a reply statement in the matter. They have stated that after the inquiry was conducted, the report of the Inquiry Officer at Annexure A-4 had been served on the applicant on 23.07.2016 enabling him to submit representation if any against the findings of the Inquiring Authority. However, the applicant did not submit any representation against the findings of the Inquiring Authority. Accordingly, the Disciplinary Authority then imposed appropriate penalty of compulsory retirement upon him by the Annexure A-5 order. Subsequently, he filed the appeal against the penalty order and his contentions were examined by the Appellate Authority along with the Inquiry Report and relevant documents. The three charges that were leveled against the officer, namely, habitual absenteeism, unauthorised absence from duty intermittently for a period of 253 days from 12.07.2014 to 13.08.2015 and the disobedience of lawful orders of Superior Officer were also upheld by the Appellate Authority. The first contention of the applicant that all the charges levelled against him are the same is therefore untenable. Further, it is stated that the applicant had actually been a habitual absentee. He had been previously imposed with one major and four minor penalties for unauthorised absenteeism from duty. During his service he had also availed Extra Ordinary Leave for a period of 758 days, in addition to entitled leave. He had put in a total service of 19 years, 1 month but had more than 8 months of unauthorised absence. The Appellate Authority had considered all these contentions and then rejected the appeal as being baseless.
9. It is submitted in the reply statement that the applicant had admitted the charges framed against him unconditionally on the date of preliminary hearing in the Inquiry. The Inquiring Authority had recorded the proceedings and had obtained the applicant's signature. The Authority then concluded the proceedings as per Annexure A-3. At the time of inquiry the applicant had preferred that the proceedings be conducted in Malayalam. The Inquiring Authority conveyed to the applicant that all the proceedings will be recorded in English after translating the questions put to him into Malayalam and all answers given by the applicant in English. Further, the Inquiring Authority also recorded in the proceedings that the proceedings were read out and translated into Malayalam prior to obtaining the signature of the applicant. Hence, there were no problems caused to the applicant due to language issues. Further, the applicant's contention that there was some indication from the officers that a lenient view will be taken if charges were agreed to be admitted unconditionally, is baseless. The fact that the applicant has seen and signed the proceedings of the preliminary hearing is a testimony to the fact that he was aware of the charges levelled against him and had admitted the same being aware of the position. It is also pertinent to note that he was also given an opportunity to appoint a Defence Assistant (DA) but the same was not availed by him. The provision in CCS (CCA) Rules, 1965 for appointing Defence Assistant was explained to him during the course of inquiry, but he did not accept the same. It is submitted that all the charges were examined and found proven on the basis of documentary and other evidences. The applicant was fully aware of the proceedings of the preliminary hearing and took part in them without demur. After being found guilty and due to his unconditional acceptance of the three charges, he was then issued with the penalty of compulsory retirement. It is submitted that major penalty proceedings have been executed properly by the disciplinary authority before imposing the penalty on the applicant.
10. It is submitted by the respondents in the reply statement that various Courts have held that if an employee abandons his service, the cessation occurs not at the behest of the employer but because of the employee's conduct. However, even in such an eventuality the employer must comply with any due procedure, such as departmental proceedings before terminating the absenting employee's services. In this connection, the respondents have produced at Annexure R-1 of the reply statement, a copy of the judgment of the Hon'ble High Court of Kerala in WP(C) No. 32286 of 2009 delivered on 19.09.2016 in the matter of Union of India and Others v. A.S. Shaji. In this matter, the Hon'ble High Court has referred to a precedent matter of Vivekanand Sethi v. Chairman J and K. Bank Ltd. (2005) 5 SCC 337. In that matter the Hon'ble Apex Court had observed that mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act by the workman. The Apex Court even held that a limited enquiry whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired or failure on his part on being asked so to do amounts to sufficient compliance of the principles of natural justice. Further, in Vijay S. Sathaye v. Indian Airlines Ltd (2013) 10 SCC 253 the Apex Court has observed that absence from duty initially may be a misconduct but when absence is for a very long period, it may amount to voluntarily abandonment of service and in that eventuality, the bonds of service come to an end automatically requiring no order to be passed by the employer. Drawing from these judgments, the Hon'ble High Court of Kerala in A.S. Shaji (supra) came to the conclusion in paragraph 24 as follows:-
“24. …....................In the matters of service, trite to observe, the employer is to be given sufficient leverage in the interest of efficacy of administration. So the scope of judicial interference falls in a narrow compass: only patent and gross illegalities and irregularities bordering on blatant violation, for instance, of the principles of natural justice call for interference.”
Under these circumstances, the Hon'ble High Court of Kerala held that compelling the employer to re-engage an erratic employee is not in public interest. Drawing from these citations and findings therein, the respondents say that the O.A should be dismissed as it is devoid of merit.
11. During oral submissions, learned counsel for the applicant and has provided a copy of Madan Pal Mechanic Hindan, Central Electric Division (CPWD) v. Union of India and Others heard by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A No. 2460/2011 decided on 27.02.2012. It has been held in this O.A that the Appellate Authority has to give a proper reason as to why the contentions raised by the applicant in his appeal cannot be accepted. In that case, it was found that the Appellate Authority had not taken into consideration the contention of the applicant and without applying its mind in regard to the factor enumerated in sub-Rule 2 of Rule 27 of CCS (CCA) Rules, 1964, a cryptic order had been passed. Accordingly, because there was no compliance to the Rule 27 (2) of the CCS (CCA) Rules, the matter was remitted back to the Appellate Authority to pass fresh orders keeping in mandate rules and the contentions raised by the applicant in the appeal and pass a reasoned and speaking order. However, in the matter at hand, we do not think that this is very relevant. The Appellate Authority herein as noted earlier in order produced at Annexure A-7 dated 10.10.2017 had passed the same after first summarising each point of the one page appeal submitted by the DGS (applicant). Each of these points made by the applicant were examined and dealt with. To the point as to why the inquiry was conducted in one day, it is to be noted is that the Inquiring Authority was able to conduct and finish examination within the same day. Once there was an admission from the DGS that he had admitted all the charges, even if he tried to give some conditionalities, there was no need for conducting any further inquiry.
12. Another contention taken by the applicant was that the further steps which are envisaged under Rule 14(14) onwards of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were not taken in his case. This was explained by the learned SCGSC for the respondents by stating that in this case, as the government servant had admitted all the Articles of Charge, there was no further steps to be taken required as contemplated under the Rules 14 (14) onwards. In this connection, she drew attention to Rule 14(9) and Rule 14(10) of the CCS (CCA) Rules, 1965 which are as below:-
“14(9) If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.
14 (10) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the government servant pleads guilty. ”
She drew attention to the response of the DGS to the question posed by the Inquiring Authority (at question 11 of the proceedings at Annexure A-2) which was in response to the 2nd Article of Charge, when he was asked whether he admitted the charge.
Ans: “Yes. I was under treatment at Karuvelipady Govt. Hospital during the said period for lever complaint and time to time the matter was informed to the Departmental Officer telephonically and in person. Medical certificate and Fitness Certificate along with leave application were submitted while joining for duty. Subsequently since my wife was undergoing treatment, I could not report for duty, supporting documents were submitted.”
Similarly, at Question No. 17 to the question, do you admit the charge framed against you unconditionally the answer was as follows:-
Ans: Yes. However, I would like to submit that I did not report for duty due to the circumstantial compulsion. Hence, I request that my absence for the said period may not be treated as willful disobedience.
13. Learned SCGSC further stated that the first and third Articles of Charges were admitted even without any other comment. However even the admissions as above do not mean that the DGS had not admitted the charge but had only given a sort of explanation to go along with the admission. The DGS(Applicant) had mentioned about a medical certificate and fitness certificate submitted by him along with the leave application. However, none of these have been produced either at the relevant time or later in the O.A. Hence, his admission of unauthorised absence is clearly there in the matter of the 2nd charge also by way of his initial response. It is thus to be accepted that he had admitted the charge in question. In any case, in reference to the 1st Article of Charge and the 3rd Article of charge he has not even made any such further conditionality. Even in the answer to the final Question 17, he only tried to give the explanation that he did not report for duty due to circumstantial compulsion.
14. After considering all the above aspects, we are of the opinion that in the totality of circumstances and details, there does not appear to be a case that there was denial of the charges or expression of some conditionalities that require further action. We do not think that the fact that the DGS/applicant added a few points more to his positive response to the question of whether he had admitted the charge would tantamount to denying the charge in any way or putting a conditionality. Rather he clearly accepted the charge but tried to somewhat justify his action in terms of additional explanation. The Inquiry Officer therefore rightly concluded that each charge was admitted thus not requiring any further inquiry/hearing. Further, all the details which have been brought out by the Inquiry Officer as well as the Appellate Authority clearly prove the person concerned had been an habitual absentee, who had clearly no reasons with him to justify his absence. Also, his past actions that led to a major penalty along with minor penalties being imposed on him, were rightly taken into consideration before imposing the penalty of compulsory retirement. A small explanation tagged with the admission accepting the charge does not establish that the inquiry was not conducted in the proper manner or requiring that the inquiry needed to be again conducted from a certain stage. As has been brought out by the judgments brought by the respondents, in such cases a quicker procedure is even justified and small procedural errors should not be given more than due importance, when there is a clear pattern of behaviour that is established and sufficient evidence has existed to prove the charges at the very outset.
15. In this case it is also clear that a very, very long rope had been given to the DGS/applicant. This seems to have been misused by him to continue with his irregular behaviour, habitual absenteeism as well as non regard to government instructions. We therefore do not find that a case has been made out warranting any interference in the decision taken by the respondent authorities.
16. The OA is therefore, dismissed. No order as to costs.
(Dated, 2nd January, 2023)
