Amandeep Kaur vs Union Of India & Ors.
2015 Latest Caselaw 7898 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 6792/2015
                                       Judgment reserved on: 09.09.2015
%                                      Judgment decided on: 14.10.2015
       AMANDEEP KAUR                                    ..... Petitioner
                   Through:            Mr.Ayush Negi with Mr.Rajeev
                                       Misra and Mr.Himanshu Tyagi,
                                       Advocates.
                     versus
       UNION OF INDIA & ORS.                             ..... Respondents

                     Through:          Mr.Rajan Khosla, Advocate with
                                       Mr.Reshesh Mani Tripathi,
                                       Govt.Pleader on behalf of
                                       R-1&2/UOI
       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (JUDGMENT)

1. The present writ petition has been filed for setting aside the order

dated 01.08.2014, whereby the petitioner was imposed with a penalty of

reduction of pay to the minimum of her basic in the pay band of Rs.5200-

20200+Grade Pay Rs.2400 from Rs.7830/- +Rs.2000 (Grade Pay) to

Rs.6460+2000 (Grade Pay) for a period of three years with a direction that

the petitioner shall not earn any increments of pay during the said period and

that the said reduction shall have the effect of postponing her future

increments of pay. The petitioner also challenges the order dated 30.12.2014

W.P.(C) 6792/2015 Page 1 whereby the intervening period with effect from 03.08.2013 to 02.09.2014

was ordered to be treated as "dies-non" for all purposes with denial of any

allowance for the said period.

2. A brief narration of facts shows that the petitioner joined the CISF on

02.09.2006 and proceeded on maternity leave of 180 days with effect from

25.06.2012. She was blessed with a girl child on 15.08.2012. Before the

expiry of the maternity leave, she applied for 60 days of Child Care Leave

(CCL) with effect from 22.12.2012, but was sanctioned 30 days of CCL.

She, on expiry of CCL, rejoined her duties on 21.01.2013. She also applied

for additional CCL with effect from 22.01.2013 vide her application dated

16.01.2013, but the same was rejected in the first instance. On her

approaching the higher officials, she was sanctioned 30 days of leave with

effect from 22.01.2013. She returned to her parental home where the child

had developed pneumonia and was treated at Community Health Centre

(Sammudaik Swasthya Kendra), Baraut, Baghpat, U.P. Finding no

improvement in the condition of the child, the petitioner returned to

Hyderabad on 12.02.2013 and the treatment of the child started at Apollo

Hospital (empanelled). The treating doctor diagnosed the child of five

months age to be suffering from allergic bronchitis recurrent tract infection

W.P.(C) 6792/2015 Page 2 and advised proper and constant supervision by the mother. On expiry of 30

days CCL, she was to rejoin on 21.02.2013, however, she applied for

extension of CCL by 5 months with effect from 21.02.2013. Her application

was returned to her on 20.02.2013 with the remark that the medical

certificate was not attached to the application. She resubmitted the

application on 21.02.2013. Although she was required to join duties on

21.02.2013, she did not do so and a reminder call up Notice-I dated

28.02.2013 was sent to her directing her to rejoin the duties immediately or

face Departmental Enquiry. The said notice was duly replied and again a

request was made to sanction the CCL on the grounds that the child was

unwell and there was no one at home to take care of the child. Another call

up Notice-II and later a Notice-III were sent to her on 14.03.2013 and

20.03.2013 respectively. The petitioner replied, but did not re-join the

duties. Since petitioner did not re-join the duties, a Memorandum of Charge

dated 11.04.2013 under Rule 36 of the CISF Rules 2001 alleging that she

had continued to overstay her sanctioned leave from 21.02.2013 and had

exhibited an act of gross misconduct and indiscipline was served upon her.

A Departmental Enquiry was ordered on 26.04.2013. The petitioner duly

participated in the enquiry and report of the enquiry officer was submitted to

W.P.(C) 6792/2015 Page 3 the Disciplinary Authority on 10.07.2013. The Disciplinary Authority by

order dated 03.08.2013 ordered that the petitioner be removed from service

on account of proven misconduct. The petitioner's appeal dated 29.08.2013

was rejected. She preferred a Revision and the Revisional Authority by

order dated 01.08.2014 converted the penalty of "removal from service" to

"reduction of pay to the minimum of her basic in the pay bad of Rs.5200-

20200+Grade Pay Rs.2400 from Rs.7830/- +Rs.2000 (Grade Pay) to

Rs.6460+2000 (Grade Pay) for a period of three years with direction that

no increments shall be earned by her during that period and that it will have

effect of postponing her future increments of pay".

3. What emerges is that the petitioner had applied for sanction of the

CCL with effect from 21.02.2013 but the same was not sanctioned to her.

Her repeated submissions of the application/request for sanction for further

period were not acceded to; still she did not rejoin her duties on expiry of the

period of sanctioned leave. She did not re-join her duties even after she was

served with three call-up notices, asking her to rejoin her duties and

simultaneously informing her that her application for CCL was rejected. The

fact, therefore, is that the petitioner did continue to remain absent from duty

without any sanctioned leave and this proves the misconduct.

W.P.(C) 6792/2015 Page 4

4. The contention of the petitioner is that her child, born on 15.08.2012,

was unwell and was suffering with allergic bronchitis recurrent tract

infection for which treatment was given to her at an empanelled hospital,

i.e., Apollo Hospital and that the medical prescriptions of Apollo, DRDO

Hospital, Hyderabad dated 01.02.2013, 04.02.2013, 06.02.2013, 14.02.2013,

26.02.2013, 19.03.2013, 16.04.2013 were submitted with the respondent

along with the application for sanction of CCL. It is submitted that the

genuineness of these certificates has never been in dispute, despite which

she was denied the CCL. It is contended that she had applied for CCL under

pressing circumstances which shows that the child, who was then suffering

from allergic bronchitis recurrent tract infection, needed her support and

care. The child was just a toddler of five months and dependent on her

mother's feed. It is further contended that she had been acting under the

advice of the doctor who had recommended that the mother should

constantly supervise the child. It is further contended that her service record

was clear and she had never suffered with any penalty in the hands of

respondent.

5. It is contended on behalf of the respondent that the petitioner cannot

claim the CCL as a right and that the respondent is within its rights to deny

W.P.(C) 6792/2015 Page 5 it for administrative reasons. It is submitted that the petitioner was denied

the CCL due to shortage of lady Constables as many of them were at that

time on leave and that there was another lady Constable who had applied for

leave. It is submitted that it was due to these exigencies of service that leave

was refused to her. It is further submitted that 14 duty posts were required to

be manned by lady staff in one shift on 21.02.2013 when the petitioner had

applied for the leave. It is further submitted that total 28 lady personnel were

posted in 'C' Coy and out of this, 12 were on leave/

course/CCL/ML/Medical Rest, etc until 13.02.2013 and that male staff

could not be asked to function in the post of lady Constable. This included 8

duty posts which were to be covered by lady screener staff. It is contended

that the grounds raised by the petitioner were taken into consideration by the

Revisional Authority and the punishment from removal from service was

converted into lesser punishment. It is submitted that in view of the fact that

the petitioner, despite receiving three notices, calling upon her to re-join her

duties failed to do so, the penalty imposed upon her by the Revisional

Authority cannot be said to be disproportionate.

6. We have given due consideration to the rival contentions of the

parties. The question for consideration is if the penalty imposed is

W.P.(C) 6792/2015 Page 6 disproportionate to the proved charges. There is no dispute to the settled

proposition of law relating to the extent of judicial intervention in cases of

imposition of penalty on proof of charges on the ground of proportionality.

The court does not sit as an Appellate Court to review the order, but can

interfere where it is of the opinion that the penalty imposed is grossly

disproportionate, harsh, excessive, perverse or irrational. In such cases, the

Court can either remand the matter for re-consideration to

Disciplinary/Appropriate Authority or to cut short the litigation, itself

impose appropriate punishment for cogent reasons. The Supreme Court in

the case of Chairman-Cum-Managing Director, Coal India Limited and

Another vs. Mukul Kumar Choudhuri and Others: (2009) 15 SCC 620 has

clearly held as under:-

"19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected

W.P.(C) 6792/2015 Page 7 to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment."

7. In the present case, that the petitioner overstayed the sanctioned leave

since 21.02.2013 without permission is not disputed. In the Departmental

Enquiry, she explained the reasons of her overstay, i.e., that her five months

old daughter was ailing and suffering from allergic bronchitis recurrent tract

infection; that the doctor had advised the constant care and attention. The

child was required to be nebulized during the day, there was nobody at her

house to take care of the toddler and the child underwent treatment at Apollo

DRDO Hospital, an empanelled hospital. It is contended that for these

compelling reasons, she was unable to join her duties and that she also

considered her prime duty to be towards her ailing child. Undoubtedly,

leave is not a matter of right for an employee and the same can be refused by

the employer in view of the exigencies of the service. The reason for refusal

of CCL is shown as shortage of lady Constables in the Coy. In the enquiry,

the respondent had examined PW-1 who had given the status of lady

Constables up to 13.02.2013 and had deposed that there were totally 28 lady

personnel posted in 'C' Coy and out of this, 12 were on leave

/course/CCL/ML/Medical Rest, etc., till that date, i.e. 13.02.2013. The

W.P.(C) 6792/2015 Page 8 petitioner apparently sought extension of leave with effect from 21.02.2013.

In order to prove the shortage of lady personnel in the Coy after 13.02.2013,

the respondent had examined CW-1 who had stated that on 21.02.2013 there

were four lady Constables on leave and one was on OSL. He had further

deposed that 13 lady screener staff were mandatory to be deployed for one

shift of a Coy. It therefore is clear that out of 28 lady personnel posted in

'C' Coy, only 5 were not on duty. Besides that, no other reason for not

approving the CCL was shown by the respondent during the enquiry.

Apparently, the respondent had managed its affairs with shortage of 12 lady

personnel until 21.02.2013, but, found it difficult to manage it beyond

21.02.2013 when only four lady personnel were on leave, the fifth on OSL

obviously being the petitioner.

8. The benefit of Child Care Leave was introduced in Service Rules to

ensure the welfare of the child. It was felt that the working women were

unable to devote their time towards their children due to exigencies of

service; this led to introduction of CCL, which can be availed of any time by

a mother whenever she feels that the child needs her care. This facility is

available to a woman employee only till the child attains the age of 18 years.

There is also no dispute that the CCL can be claimed, without assigning any

W.P.(C) 6792/2015 Page 9 reason. A lady employee can even ask for uninterrupted 730 days of CCL

(Kakali Ghosh vs. Chief Secretary A & N Administration & Ors., Civil

Appeal No. 4506/2014,decided on 15.04.2014). The petitioner in this case,

however sought CCL under the compelling circumstances of child being

unwell and absence of any other person to take care of the child in her

absence.

9. To this Court's mind, the respondents have dealt with the plea of the

petitioner in a very unsympathetic manner. Even though the genuineness of

the medical certificates submitted by her was not disputed, yet the approach

of the respondents was callous. The mindset of the respondent is apparent

from the following observation in the impugned order:

"iv) ..... ...... On perusal, it is noticed that doctor from Apollo Hospital, Hyderabad had been consulted on 14.02.2013, 26.02.2013, 19.03.2013 and 16.04.2013 respectively as out-patient only as the child was suffering from minor disease like "Cold and Cough and loss of Appetite". Even the baby was never advised for admission in Hospital. As such, plea of the petitioner for justifying her long OSL is not acceptable and denied."

It was further observed:

"viii) ..... ..... With regard to taking care of her ailing kid, it is observed that treatment had been taken from Apollo hospital, Hyderabad on 14.02.2013, 26.02.2013, 19.03.2013 and 16.04.2013 as out-patient only as the child was suffering from "Cold & Cough and Loss of

W.P.(C) 6792/2015 Page 10 Appetite". ..... ....... ....... Further as mentioned above there is nothing in the medical documents of the child to suggest mother's presence/attendance for 24 hrs of a day for such long period of her overstay of more than five months. ....."

10. It is also obvious from the facts on record that till 02.08.2013 the

petitioner was facing departmental enquiry which she was regularly

attending and by order dated 03.08.2013 she was removed from service and

it was only after the order of the revisional authority dated 01.08.2014 was

she taken back into the service. Although the respondents have found the

reason of overstay of leave on the ground of illness of the child unreasonable

yet at the same time, the revisional authority reduced the penalty on

compassionate grounds. It observed as under:

"6. .... ...... However, it is also a fact that her newly born baby was suffering illness and she requested extension of leave (CCL) to the Competent Authority. As such purely on humanitarian aspect, I am inclined to consider the consequences and impact of this penalty on the family of the petitioner, who for no fault of theirs would be subjected to severe deprivation and their living would be adversely affected. Hence only on sympathetic and compassionate consideration, keeping in view the clean record of service of the petitioner and future of her newly born baby, I, would like to give her an opportunity to serve the force and hence, hereby modify the penalty..... ......"

W.P.(C) 6792/2015 Page 11 The revisional authority thus had apparently acknowledged the fact

that the newly born of the petitioner was suffering with illness and it was for

that reason that she had been requesting for extension of CCL.

11. Although the respondents have refused CCL on the ground of

exigencies of services, they have failed to bring on record any emergent

situation showing presence of petitioner on duty imminent (Indeed, they

have even failed to show an acute shortage of female staff) to justify refusal

of CCL when it was sought for a valid reason. A parent forgets herself and

subsumes her interest to the needs and requirements of the child--she risks

everything for the welfare of the child.

12. We must remark that CCLs are special types of leaves which are

prescribed for the benefit of the child. They serve a larger societal goal and

public interest in furthering every individual's right to a wholesome family

life, securing the interest and health of infants - all of which are answered

by Article 21 of the Constitution of India. Public employers should not

ordinarily be denying the CCL to a mother unless it is for compelling and

overriding public interest considerations. It could not have been in a case

where the child was suffering. The discretion for granting CCL should be

W.P.(C) 6792/2015 Page 12 exercised liberally by the employers, keeping its objective and underlying

purposes in mind.

13. In the facts and circumstances of the case, we are of the opinion that

the penalty imposed by the impugned order dated 01.08.2014 was grossly

excessive, perverse and disproportionate. For the same reasons, the order

dated 30.12.2014 by which the intervening period dated 03.08.2013 to

02.09.2014 was ordered to be treated as 'dies non' must also be set aside.

14. The consistent line in the enquiry report has been that even if it were

an emergency, once leave has been denied, the petitioner should have

rejoined duty and then sought redressal. Perhaps that is required for the

proper functioning of a disciplined force and it is therefore we do not

interfere with the finding of misconduct itself. Nevertheless, in determining

the penalty to be finally imposed, we may certainly take into account the

objective of CCL, the petitioner's situation and indeed the respondent

authority's callous attitude with respect to her. We find it appropriate that

the penalty be reduced to that of only "censure" under Sub-Rule 22 (i) of

Rule 36 r/w Rule 34 of CISF Rules, 2001. We also direct that the number of

days that the petitioner has overstayed, i.e., 165 days, be treated as having

been spent on Child Care Leave. The intervening period from removal to

W.P.(C) 6792/2015 Page 13 reinstatement i.e. from 03.08.2013 to 02.09.2014 shall be treated as if she

had rendered service. Consequently, she shall be entitled to all arrears of

salary as well as consequential benefits, if any. Orders as to the treatment of

165 days of leave as also the period between 03.08.2013 to 02.09.2014 shall

be issued in six weeks and arrears shall be paid within the same time. A

copy of the same shall be filed for the record along with a supporting

affidavit. List for compliance review after eight weeks.

15. The writ petition is allowed in the above terms.

                                              DEEPA SHARMA, J



                                              S. RAVINDRA BHAT, J

OCTOBER 14, 2015
rb/bg




W.P.(C) 6792/2015                                                       Page 14