Union Of India & Ors. vs Sh.Ashok Kumar Arora
2011 Latest Caselaw 2207 Del

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.590/2008

%                          Date of Decision: 26.04.2011

Union of India & Ors.                                      .... Petitioners

                        Through Mr.Gaurav Liberahan & Mr.B.S.Jain,
                                Advocates.

                                  Versus

Sh.Ashok Kumar Arora                                      .... Respondent

                        Through Mr.S.K.Gupta, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.       Whether reporters of Local papers may            YES
         be allowed to see the judgment?
2.       To be referred to the reporter or not?            NO
3.       Whether the judgment should be                    NO
         reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners, Union of India, through the Secretary Ministry of

Defence, & Ors., have challenged the order dated 30th April, 2007

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No.1367 of 2006, titled as „Ashok Kumar Arora v. Union of

India, through Secretary, Ministry of Defence & Ors., allowing the OA of

the respondent and setting aside the orders dated 30th April, 2004

whereby the disagreement note to the enquiry report was given by the

disciplinary authority and the order dated 23rd September, 2004

imposing a minor penalty of censure in a major penalty proceeding and

treating the absence period from 23rd June, 1999 to 26th May, 2003 as

extraordinary leave without medical certificate as well as the order

dated 9th December, 2005 passed in the appeal affirming the order of

the Disciplinary authority, which were quashed and the petitioners were

directed to accord all benefits for the period of 23rd June, 1999 to 27th

May, 2003 to the respondent including retiral benefit. The petitioners

have also challenged the order dated 25th July, 2007 passed in RA

No.139 of 2007 whereby the review application filed by the petitioners

was also dismissed.

2. Brief facts to comprehend the disputes between the parties are

that the respondent is a retired Assistant Engineer (Building & Roads)

who had superannuated on 31st October, 2004. Before superannuation,

the respondent was served with a charge sheet dated 9th December,

2000 intending to initiate disciplinary proceedings under Rule 14 of the

CCS (CCA) Rules, 1965 on the allegation that the respondent pursuant

to the High Court order was instructed to join GE (NW) Tunir as per E-

in-C‟s    Branch         Delhi   posting    order   No.MES/178/98     dated         11th

November,           98    and     GE       (W)   Delhi   Movement     Order         No.

1014/Offrs/1111/E1B dated 21st June 1999. The respondent on being

SOS from his previous unit failed to report to his new unit at Tunir and

remained absent w.e.f. 23rd June, 1999 and thus committed an offence

of failing to maintain absolute integrity and devotion to duty and acted

in a manner unbecoming of a Government servant and convened the

provision of Rule 3 (1) (i), (ii) & (iii) of CCS (Conduct) Rules, 1964.

3. The respondent had earlier been posted to a hard station and

there he had been a chronic patient of bronchial asthma since, 1988.

The respondent was even subjected to a medical examination regarding

fitness of civilians in the field service on account of his bronchial

asthma in 1994, whereby it was represented that Silchar, the place of

his posting did not suit him due to his ailment because of the specific

climatic conditions.

4. On medical examination, the graded specialist recommended the

respondent, permanently unfit for duties in humid, dusty and extreme

cold conditions. The respondent, therefore, had been transferred in the

year 1996 to Delhi.

5. The respondent had again been transferred by order dated 11th

November, 1998 from Delhi to Tunir, which was objected by him on

account of adverse humid conditions which were not in consonance

with his medical report which was given by the graded specialists of the

petitioners in the year 1994. The respondent had represented against

his transfer to Tunir and had filed a writ petition before the High Court

which was however, not accepted. However, in his review application, it

was directed to consider his medical fitness before posting him to Tunir.

6. Though the High Court in the review application had directed

consideration of the medical fitness of the respondent before posting

him to Tunir, however, his medical fitness was not ascertained. Rather

a major penalty charge sheet under Rule 14 of the CCS (CCA) Rules,

1965 was issued. The allegation of misconduct was that he remained

absent from duty w.e.f. 23rd June, 1999 as he failed to report to his

place of posting at Tunir which was tantamount to failure on the part of

the respondent to maintain integrity and devotion to duty and acting in

a manner unbecoming of Government servant.

7. The enquiry officer held that the charges against the respondent

were not made out as his movement order was invalid and even the

charge No.4 regarding failing to maintain absolute integrity and

devotion to duty was not correctly proved and he was held to be not

guilty. The enquiry officer noted that from the service record of the

respondent, it is evident that he had complied with the posting to a

hard station in 1988 and 1993 and was declared unfit for duties in

humid, HHA, dusty and extreme cold climatic conditions as being a

case of bronchial asthma in 1994. Despite that he continued to serve till

January, 1996 to complete his tenure of hard posting. The enquiry

officer also noted that asthma is a disease with no cure and can be

controlled only by prevention of its triggering and medications but

despite this, the immunity of the body gets weaker as a person grows

old and in the circumstances, rejected the plea of the petitioners. The

plea that the conditions of the respondent would have improved was

also repelled as it was found to be based on mere assumptions of the

petitioners without any evidence. It was also held that in his case

neither justice was done, nor been seen to be done.

8. The disciplinary authority on receipt of the report of the enquiry

officer, however, disagreed with the findings. The disagreement note

was based on the assumption of the disciplinary authority that the

humidity level at Silchar in Assam and Mumbai, are comparable and

thus, if the respondent could serve at Silchar till 1996, he could serve

at Mumbai as well. It was also observed by the disciplinary authority

that the respondent had willfully not collected the movement order and

had wrongly termed the case as subjudice. It was also held that the

respondent had not submitted any medical certificate for his absence

and therefore, his unauthorized absence is proved beyond reasonable

doubt. Regarding the declaration of the respondent being declared unfit

for duties in humid, HHA, dusty and extreme cold climatic conditions

etc. vide 160 MH, C/O 99 APO dated 20th September, 1994, it was

asserted that the said certificate was not renewed after completion of

three years and therefore, its validity had expired and instead of getting

himself medically re-examined, the respondent indulged too frequently

in letter writing and therefore, he tried to confuse the issues.

9. The disagreement note issued by the disciplinary authority was

replied in detail by the respondent, however, the disciplinary authority

held that the charges were made out against the respondent.

Consequently, a minor penalty of censure with certain observations as

detailed hereinafter was passed:

"AND WHEREAS Shri Ashok Kumar Arora, AE B/R submitted his representation dated 27th May, 2004 bringing out the following points:-

(a) That CE WC is competent to issue his disagreement order.

(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 20th September, 1994 of 160 MH C/O 99 APO his posting to Pathankot was cancelled in December, 1997. 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 27th May, 2004 and the following is stated in this regard:-

(a) That CE WC is competent to issue his disagreement order under CCS (CCA) 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 September, 1994 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 under signed 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 (CCA) Rules, 1965 hereby impose the penalty of „CENSURE‟ upon Shri Ashok Kumar Arora, AE B/R with further direction that absence period from 23rd June, 1999 to 26th May, 2003 be regularized as EOL without Medical Certificate as per Leave Rule."

10. Aggrieved by the order of the disciplinary authority, the

respondent filed an appeal. However, the appeal was dismissed by the

Appellate authority by order dated 9th December, 2005 and the minor

penalty with certain observations as imposed by the disciplinary

authority, was affirmed by the Appellate authority.

11. The respondent challenged the order of minor penalty and

affirmation of the punishment by the appellate authority on the ground

that the disagreement arrived at by the disciplinary authority was not

tentative but a final view of the matter, and therefore, the respondent

was denied a reasonable opportunity to show cause and reliance was

placed on Yoginath D. Bagde v. State of Maharashtra, (1999) 7 SCC

739. The order was also challenged on the ground that the disciplinary

authority had to act independently while awarding the punishment.

However, the disciplinary authority had called for the comments from

the Chief Engineer, Southern Command which could not form part of

the record, nor could be relied on and therefore, punishment was

imposed upon the respondent on extraneous considerations. The

respondent also made a grievance that though a second enquiry was

conducted on 6th December, 2001 but no orders for the same were

issued and there could not be a de novo enquiry. The emphasis was

also laid on the fact that pursuant to examination of the respondent by

the graded specialist of the petitioners, it was recommended that the

respondent be transferred to a place which is not highly humid, HHA,

dusty and with extreme cold climatic conditions as it was not conducive

for him and therefore, he was transferred from Silchar to Delhi, where

climatic conditions were conducive for bronchial asthma. It was

contended that the respondent could not be posted to Tunir without

considering his fitness especially in view of the directions issued by the

High Court in RA No.61/1999 in CWP No.4691/1999 on 24th August,

1999 to get him medically examined. On behalf of the respondent, it

was also asserted that the respondent has been punished by an

incompetent authority which is not in accordance with law.

12. The pleas and contentions of the respondent were opposed by the

petitioners contending inter-alia that the medical examination of the

respondent in the year 1994 would hold good only for three years and

thereafter as no application for leave was submitted by the respondent,

he could not be accorded leave and in any case as the signatures were

not appended on his medical leave application, his leave was rightly

treated as EOL and therefore, he had been let off with a minor

punishment of censure which should not be interfered with.

13. The Tribunal after considering the pleas and contentions of the

parties held that the medical certificate by the petitioners could not be

denied to the respondent, nor its consideration could be declined on the

ground that the signatures of the respondent were not appended on the

application. The Tribunal opined that the transfer of the respondent

from Silchar to Delhi was on account of his medical examination by the

graded specialist of the petitioners who had declared him unfit to be

posted at a place with humid climatic conditions. It was also held that

the ailment of bronchial asthma is a permanent incurable disease,

which is best treated by prevention as per the manual on asthma and

its repercussions, which were appended to the Original Application that

was filed before the Tribunal. The Tribunal held that the medical

certificate stipulating un-fitness of the respondent at the humid and

cold place issued by the graded specialist of the petitioner was not only

valid for three years but reflected permanent incapacitation on behalf of

the respondent to be posted at such places. In any case pursuant to the

directions of the High Court in the review application which

contemplated medical examination of the respondent before his

transfer, the petitioners could not transfer the respondent to Tunir

without first getting him medically examined. The Tribunal also

considered the fact that though the respondent was not medically

examined before transferring him to Tunir, however, when he reported

at Mumbai, he had to be hospitalized. The allegation that

hospitalization of the respondent was merely dramatization was repelled

as plea of the petitioners with this regard was without any factual basis,

and based merely on assumptions and was contrary to the medical

record. The certificate issued by the hospital was accepted by the

Tribunal being admissible and relevant as per Rule 19 of the CCS

(Leave) Rules, 1972.

14. The Tribunal also took into consideration the order dated 16th

April, 2003 re-transferring the respondent from Tunir to Delhi on the

same medical ground. Though the respondent was transferred back

from Tunir to Delhi without prejudice to the departmental action,

however, his posting back from Tunir to Delhi unequivocally reflected

his medical conditions which had made him unfit for transfer even in

1999, and consequently, without his medical examination especially

pursuant to the order of the High Court dated 24th August, 1999 in RA

No.61/1999 in CWP No.4691/1999 the petitioners could not have

transferred the respondent from Delhi to Tunir, and his failure to join

there, could not be held to be misconduct that could be attributed to

him nor could he be punished for the same.

15. The Tribunal has also held that the disciplinary authority pre-

determined the issue by holding the charge as proved which makes the

disagreement note, not as tentative but a final decision and thus,

reasonable opportunity was denied to the respondent. The Tribunal also

observed the non-consideration of the pleas and contentions raised by

the respondent while passing the punishment order by the disciplinary

authority after the disagreement note was served on the respondent,

and thus, set aside the minor punishment which was imposed with the

observations of the disciplinary authority as detailed hereinbefore

imposed on the respondent.

16. This Court has heard learned counsel for the parties in detail

and also perused the record which was produced before the Tribunal

which has been annexed along with the present writ petition.

17. Learned counsel for the petitioners has reiterated the pleas and

contentions raised before the Tribunal, that medical certificate which

was issued by the petitioners‟ graded specialist was for three years and

despite the petitioners being graded as unfit in 1994, he continued to

work till January 1996 whereafter he was transferred to Delhi.

Thereafter, he was posted at Tunir, however, the respondent did not

collect the movement order, nor joined at Tunir, and thus the charges

against the respondent have been proved. The learned counsel for the

petitioners feebly admitted to contend that the disagreement note of the

disciplinary authority was not final but only tentative.

18. The certificate issued by the graded specialist of the petitioners

could not be ignored on the ground that the certificate was not renewed

by the respondent three years after 1994. This is not the case of the

petitioners that they had directed the respondent to appear for the

medical test, however, the respondent avoided his medical checkup or

that he was not present for his medical checkup to get ascertained his

physical condition and fitness. Rather the medical certificate of 1994

had also reflected that the ailment of bronchial asthma is a permanent

incurable disease, which is best treated by prevention as per the

manual on asthma. From the medical certificate and other materials

produced, it is also apparent that the immunity of the body gets weaker

as a person grows old and the bronchial asthma does not improve with

the aging of a person which facts have been taken into consideration by

the Tribunal.

19. The learned counsel for the petitioners has not been able to show

any such ground which will reflect that the reasoning of the Tribunal is

perverse or the inferences of the Tribunal are based on any extraneous

material or evidence. Rather it is relevant to note that the disciplinary

authority had taken into consideration the comments from the Chief

Engineer, Southern Command, a copy of which was not even given to

the respondent. Under the procedure for enquiry there was no provision

to take the comments of the Chief Engineer, Southern Command before

taking the decision by the disciplinary authority. The respondent could

not be held liable for writing letters frequently on account of arbitrary

procedure adopted by the petitioners. The petitioners transferred the

respondent from Silchar to Delhi on account of finding him unfit to

humid and cold places and despite opinion from their expert and

despite the order of the High Court to transfer him to a place only after

having him medically examined, the petitioner passed an order to get

the respondent transferred from Delhi to Tunir. This is not denied that

climatic conditions at Tunir were not conducive for the respondent as

per his medical report which was rendered by the graded experts of the

petitioners. The report also indicated the permanent nature of the

respondent‟s ailment which could not be negated on the ground that

the report of 1994 was valid only for three years. Rather the petitioners

transferred the respondent back from Tunir to Delhi in 2003 on the

ground of his medical unfitness for such places. Though his transfer

from Tunir to Delhi was without prejudice to the disciplinary proceeding

initiated against him, however, the unsuitability of the respondent to

work at Tunir could not be ignored. While considering whether the

respondent has misconducted in not joining at Tunir, it was incumbent

upon the petitioners to get him medically examined pursuant to the

order of the High Court dated 24th August, 1999 in RA No.61/1999 in

CWP No.4691/1999. No reasons have been given or disclosed as to why

the order of the High Court was not complied with before posting him to

Tunir. This fact has not been denied and cannot be denied that when

the petitioner went to Mumbai to report at Tunir, he had to be

hospitalized. The certificate issued by the hospital has been considered

by the Tribunal. There is no evidence on the part of the petitioners to

rebut the medical certificate of the respondent issued by the hospital

where he was admitted in Mumbai. The plea of the petitioners that the

admission of the respondent at the hospital in Mumbai was mere

dramatization by him is based on mere assumption of the petitioners

and is not inconsonance with any legal evidence. Rather transferring

back the respondent from Tunir to Delhi is the vindication of the

respondent‟s plea of unsuitability of humid climatic conditions with

regard to the health of the respondent. If the respondent was unfit for

transfer in 1998 and could not be transferred without first getting him

medically examined, then how he has done a misconduct in not joining

at Tunir has not been explained by the learned counsel for the

petitioners satisfactorily. It is not that the respondent just refused to go

to Tunir but he went to Mumbai so as to reach Tunir despite being unfit

for its climatic conditions and even before reaching Tunir, at Mumbai

he had to be hospitalized. The learned counsel for the petitioners has

failed to make out any cogent ground for sustaining the order of the

disciplinary authority which is based on no evidence and is rather

based on the assumptions of the disciplinary authority and extraneous

considerations.

20. The Tribunal has also held the order of the appellate authority to

be illegal as the order is not in consonance with law. The Appellate

authority had failed to consider that the period of absence of the

respondent could not be treated as EOL, causing a break in service. The

Tribunal has relied on Narinder Mohan Arya v. United Insurance Co.

Ltd. & Others, 2006 (3) SLR SC 1992, holding that the non-application

of mind on this pertinent aspect, has rendered the appellate order to be

illegal, and thus it ought to be set aside. Learned counsel for the

petitioners has not been able to make out any ground which will show

any illegality or unsustainability with the reasoning and finding of the

Tribunal in the facts and circumstances.

21. In the totality of the facts and circumstances, there are no such

illegalities or perversities in the order of the Tribunal setting aside the

orders passed against the respondent by the Disciplinary authority and

the Appellate authority and directing the petitioners to accord all

benefits to the respondent for the period from 23rd June, 1999 to 27th

May, 2003 including retiral benefit. In the facts and circumstances,

therefore, there are no grounds to interfere with the order of the

Tribunal and the writ petition is therefore, dismissed. However, the

parties are left to bear their own costs.

ANIL KUMAR, J.

APRIL 26, 2011                  SUDERSHAN KUMAR MISRA, J.
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