Manju Lata Gupta vs Union Of India & Ors
2015 Latest Caselaw 2176 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                     Date of hearing and order: 13th March, 2015

%       W.P.(C) No. 570/2015


        MANJU LATA GUPTA                                          ..... Petitioner
                     Through:             Mr. M.S. Saini, Advocate.

                             versus

        UNION OF INDIA & ORS                                    .....Respondents
                      Through:            Mr. Ruchir Mishra and Mr. Mukesh Kr.
                                          Tiwari, Advocates for R-1/UOI. Mr.
                                          Gautam Gupta, Advocate for R-2 to R-4.

        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE I.S.MEHTA

                                       ORDER

13.03.2015 I. S. MEHTA, J. (ORAL)

1. The petitioner after attending the marriage anniversary of her son

in Muscat, Oman found herself in a waterloo and sought the intervention

of the Central Administrative Tribunal, Principal Bench, New Delhi

(hereinafter referred to as 'learned Tribunal') by filing an O.A. No. 1761

of 2013 and when the same did not bring the desired relief, filed the

present Writ-Petition under Articles 226 and 227 of the Constitution of

India.

2. The brief facts of the case are that the petitioner was working as a

Post Graduate Teacher (Hindi) in Sarvodaya Kanya Vidyalaya, D Block,

Kamdhenu, Mangolpuri, Delhi. She moved an application dated

30.11.2006 to the Principal of the aforementioned School for grant of 'No

Objection Certificate' (N.O.C) for visiting Muscat, where her son was

working, indicating therein her tentative date of departure to Muscat, viz.,

24.12.2006.

3. The petitioner found that no 'N.O.C' was forthcoming and

therefore, as a precautionary measure postponed her date of visit to

12.01.2007 and accordingly, submitted another application dated

08.01.2007 to the Head of the School who forwarded the same to the

Directorate of Education. Thereafter, on 10.01.2007, being called upon by

the Head of the School, the petitioner went to the Directorate of

Education and was asked to file a fresh application in the prescribed

proforma, along with the leave application, indicating the specific period,

duly recommended by the Head of the School along with statement of

balance leave at credit. This requirement was complied with by the

applicant, vide her application dated 08.01.2007.

4. As per the petitioner, she was given information by the concerned

official of the District Office that the file on which her application for

grant of N.O.C was initially processed stood cleared from all concerned

by 11.01.2007. On her request made to the concerned Dealing Assistant

and the Superintendent on 11.01.2007, to provide her the 'N.O.C', she

was informed that the 'N.O.C' would be sent to her school and since it

was a mere formality, she could go ahead with her scheduled departure

on 12.01.2007.

5. Thereafter, the petitioner left for Muscat on 12.01.2007 and

returned on 03.02.2007. Subsequently, she received an Order No. 16

dated 07.02.2007 issued by the Deputy Director of Education

(F.8(05)/Vig/DNWB/07/245) stating that a departmental proceeding was

contemplated against the petitioner. The aforesaid order further placed the

petitioner on suspension w.e.f. 12.01.2007. She was charge sheeted

under Rule 14 of the Central Civil Services (Classification, Control &

Appeal) Rules, 1965 vide memo dated 23.02.2007 (No.

F.8(5)/Vig./DNWB/07/330). The charges against the petitioner were that

she had left the Country for Muscat without prior permission of the

competent authority which was mandatory thereby acting in a manner

unbecoming of a Government Servant which is in violation of Rule 3 of

CCS (Conduct) Rules, 1964. The petitioner made several representations

dated 20.02.2007, 10.03.2007 and 21.03.2007 against the said suspension

order. Thereafter, she denied the charges vide written statement of

defence filed on 05.03.2007. The suspension order was subsequently

revoked by the respondents vide order dated 24.10.2007.

6. The petitioner, vide the aforementioned written statement

explained that she had, vide her application dated 30.11.2006, applied for

88 days earned leave and permission to go to Muscat w.e.f. 02.01.2007

prefixing winter vacations from 25.12.2006 to 01.01.2007 which was

submitted to the Vice-Principal of the School. She also stated that she

continued to follow instructions given by her seniors and had even

postponed her visit to Muscat to 12.01.2007. The petitioner particularly

highlighted that no mention of her initial applications for grant of earned

leave and 'N.O.C' dated 30.11.2006 was made but mention has been

made of her fresh application dated 10.01.2007. The petitioner pleaded

that she was not guilty of the charges and requested for reconsideration of

the entire matter.

7. The Inquiry Officer (I.O) submitted the enquiry report dated

19.11.2007 and opined that the petitioner had tried her best to obtain the

N.O.C and had left the country only after getting a verbal nod from the

District Office. The I.O. further concluded that she is not guilty of wilful

absence from duty as she had applied for EOL in time and the Head of the

School had marked her on EOL. However, the Disciplinary Authority did

not agree with the finding of the I.O. and accordingly a disagreement note

dated 24.04.2008 was issued to the petitioner. The Disciplinary Authority,

on the basis of the evidence available on record, passed an order dated

14.08.2008 imposing the penalty of reduction to a lower stage in the time

scale of pay for a period of one year and directed that the petitioner would

not earn increment of pay during the period of such reduction and on the

expiry of such period, the reduction would have the effect of postponing

her future increments of her pay and the period of suspension shall be

treated as not spent on duty. Subsequently, the petitioner's appeal and

review petitions were rejected by the Appellate Authority and Reviewing

Authority. The petitioner filed O.A. 1761/2013 before the learned

Tribunal which declined to grant her any relief.

Hence, the present petition.

8. The learned counsel for the petitioner, Adv. M.S. Saini submitted

that the petitioner complied with the rules and was granted oral sanction

to leave the country and the earned leave was also sanctioned in her

favour. The learned counsel for the petitioner further argued that the

Disciplinary Authority did not appreciate the facts on record and reached

to the wrong conclusion thereby compelling the petitioner to file the

present Writ-Petition.

On the other hand, the learned counsel for the respondents

vehemently opposed the contentions of the petitioner and argued that the

petitioner left the country prior to obtaining the 'N.O.C' and sanctioned

leave. The act of the petitioner was deliberate and is not expected from a

government employee. It was further submitted that the disciplinary

authority has rightly imposed the appropriate penalty on the petitioner

after giving her due opportunity of being heard.

We have perused the records and heard the learned counsel

appearing for the parties.

9. As per the rules of the Directorate of Education, Government of

NCT of Delhi, 27.01.2004 (No.1551-NWB.Admn. 2003/542-545),

application of the employee must reach the Admn. Branch, at least two

weeks prior to the proposed date of journey. Once the application is filed

by the petitioner-employee seeking permission to go abroad and the said

application is put into the process and goes out of his/her hand, the onus

shifts on the respondents to either accept or reject it and such

communication should be made available to the petitioner to show the

process to be transparent and to have a healthy atmosphere at the

workplace and avoid any dishonesty taking place in the due process. If

there is a rule that the application must reach duly completed at least two

weeks prior to the proposed date of journey to the competent authority,

the competent authority too is expected to communicate either his/her

rejection or acceptance to the concerned employee/petitioner as sought by

him.

10. In the present case, admittedly, the petitioner moved two separate

applications dated 30.11.2006 for grant of Earned Leave and 'No

Objection Certificate'. The petitioner's application for grant of 'N.O.C' is

reproduced hereinunder:

To The Principal S.K.V.D Blk. Kamdhenu, Mangol Puri, N. Delhi - 110083 Sub:- Application for grant of No Objection Certificate for going abroad.

Madam, I want to state that my son, Kapil Gupta, is working in Muscat, Sultanate of Oman. He is planning to celebrate his forthcoming marriage Anniversary there. He wants that all family members should be there on this occasion. The expenses of travelling, boarding, and lodging will be borne by him. I am planning to go there on 24th December, 06 and shall return by 30th March, 07. Before going abroad I will ensure that the syllabus of XI and XIIth classes for academic year 2006-07 is completed which I am presently teaching. Kindly issue me No objection certificate and do the needful for which I shall be highly grateful to you.

Thanking you,

Yours faithfully, Manju Gupta (Mrs. Manju Lata Gupta) PGT Hindi ID No. 19850860 Dated 30th November, 2006.

No.233 dated 30.11.06

The petitioner also submitted another application dated 30.11.2006

requesting the Principal of the aforementioned School to grant her Earned

Leave for 88 days with effect from 02.01.2007 to 3.03.2007, prefixed

with the winter break of the year 2006 for travelling to Muscat to meet

her son and attend his marriage. The head of the School sanctioned the

leave in her favour.

11. The summoned records shows that the Education Officer (E.O) has

recommended the 'N.O.C.' on 08.01.2007. The same is reproduced

hereinunder:

"May kindly see the remarks on pre-page. In this regard, it is submitted that Smt. Santosh Bansal, PGT Hindi has assured that she will try her best to tackle the problems, if any, for the Hindi classes in place of Smt. Manju Lata Gupota, TGT Hindi, who has applied for NOC for going abroad.

It is therefore recommended that she may be granted N.O.C for going abroad, as per application of the official. We will try our best to manage the classes in absence of Smt. Manju Lata Gupta, TGT Hindi.

Submitted for NA please."

Further, EO (2-XII) has recommended permission on 11.01.2007.

12. The petitioner left India on 12.01.2007 on the basis of the oral

permission from the office under the belief that her 'N.O.C' has already

been granted.

13. What is surprising in the present Writ Petition is that the

respondent department i.e. Directorate of Education was unable to

communicate to the petitioner at least 7 days prior to her departure or

even a minute before her leaving India that 'N.O.C' would not be

granted. The whole mess has been created by the respondents themselves

by not communicating to the petitioner the decision to grant or reject her

application. Certainly what the respondents are now doing is taking

action against the petitioner for nothing is to be performed on her part.

14. Here, we say this with great anguish that the competent authorities

have no business to sit over the file and to take action against an innocent

employee who complies with the rules. It is at this juncture that the

system gets rusted and the machinery i.e. the institution, fails to achieve

its desired output because of lethargy and indifferent attitude of the

persons concerned.

15. Taking into account the aforesaid facts and circumstances, and the

summoned records, it is apparent that the order passed by the Disciplinary

Authority is nothing but perverse and suffers from patent error on the face

of the record. Reliance is placed on the case titled as South Bengal State

Transport Corpn. V. Swapan Kumar Mitra and Ors., AIR 2006 SC

3533, where the Hon'ble Supreme Court of India has made the following

observations:

"It is, however, true that if perversity is shown and proved, it would be open to the Writ Court to hold as such."

16. Since, the mess created in the present facts and circumstances of

the case is of respondent department, having failed to take the decision at

the appropriate time, which resulted into the acquisition of the principle

of equity in favour of the petitioner, consequently, the order passed by

disciplinary authority dated 14.08.2008 and the order/judgment dated

26.08.2014 passed by the Central Administrative Tribunal, Principal

Bench, New Delhi in O.A. No. 1761/2014 are set aside and the petitioner

is entitled to all the consequential reliefs.

17. The petition is disposed of in the above terms. No Costs.

Departmental Proceedings record be sent back.

I.S.MEHTA, J (JUDGE)

KAILASH GAMBHIR, J (JUDGE) MARCH 13, 2015 aj