Smt. Mitali Chakrabarty Dutta vs Chairman, Rajya Sabha & Ors.
2017 Latest Caselaw 983 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.1503/2017

%                                                20th February, 2017

SMT. MITALI CHAKRABARTY DUTTA               ..... Petitioner
                  Through: Ms.     Madhusmita          Bora,
                           Advocate with Ms. Archana
                           Singh, Advocate.
                          versus

CHAIRMAN, RAJYA SABHA & ORS.             ..... Respondents

Through: Ms. Zubeda Begum, Advocate with Ms. Sana Ansari, Advocate and Ms. Samia Malik, Advocate for respondent Nos.1 to 3.

Mr. Abhishek Khanna, Advocate for respondent No.4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?       YES


VALMIKI J. MEHTA, J (ORAL)

+W.P.(C) No.1503/2017 and C.M. Nos.6853/2017 (stay) & 6854/2017 (under Section 151 CPC)

1. By this writ petition under Article 226 of the Constitution

of India, the petitioner impugns the order dated 29.7.2016 passed by

the disciplinary authority of the employer/Rajya Sabha Secretariat

terminating the services of the petitioner on account of her

unauthorized absence i.e petitioner remaining absent from duty without

any leave being sanctioned for the period not spent on duty.

2. The facts of the case are that petitioner had applied for

maternity leave of 180 days from 11.11.2013. The maternity leave was

granted to her with leave coming to an end on 16.5.2014. Since the

petitioner claimed that her new born infant required maternity

attention, she again applied for extraordinary leave for 180 days from

17.5.2014 to 12.11.2014. This extraordinary leave was also granted to

the petitioner. Petitioner claims that petitioner had no family support

in India, and therefore, petitioner after obtaining her leave right from

11.11.2013 had joined her husband in U.K. where he was working in

private services. Petitioner pleads that thereafter she applied for further

extraordinary leave for taking care of her two small children and which

was denied by the competent authority. Therefore, the petitioner had to

join back her duties w.e.f 19.12.2014. Petitioner however did not join

her duties and in spite of her being sent Office Memorandums dated

24.12.2014 and 8.1.2015 to join duties. Petitioner was also warned by

these Office Memorandums that in case she does not join for

performing her duties, then this failure to report for duty will amount to

violation of service rules. Since the petitioner did not report back for

her duty after 19.12.2014, hence disciplinary proceedings were

initiated against the petitioner. Petitioner was served with the

Memorandum dated 11.6.2015 containing the following Articles of

Charges:-

"Statement of articles of charge framed against Smt. Mitali Chakrabarty Dutta, Assistant Director (LARRDIS) Article I That Smt. Mitali Chakrabarty Dutta, Assistant Director (LARRDIS) is on unauthorized absence from duty with effect from 20.12.2014. By absenting herself from duty unauthorizedly since 20.12.2014, Smt. Mitali Chakrabarty Dutta has exhibited lack of devotion to duty and she thus violated Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964.

Article II That the said Smt. Mitali Chakrabarty Dutta failed to join her duties in the Secretariat after her sanctioned leave expired on 19.12.2014 and even after she was informed that her absence from duty beyond 19.12.2014 was being treated as unauthorized. By so failing to join her duties in the Secretariat, Smt. Mitali Chakrabarty Dutta has exhibited lack of devotion to duty and she thus violated Rule 3(1)(ii) of the CCS (Conduct) Rules, 1964.

Article-III That the said Smt. Mitali Chakrabarty Dutta who is on unauthorized absence from duty since 20.12.2014, failed to comply with the official directions issued vide Office Memoranda dated 24.12.2014 and 08.01.2015 to join her duties. By failing to so comply with the directions, Smt. Mitali Chakrabarty Dutta has acted in a manner unbecoming of an employee of the Secretariat and she thus violated Rule 3(1)(iii) of the CCS (Conduct) Rules, 1964."

3. Petitioner even in these enquiry proceedings failed to

personally appear and contest the enquiry proceedings. Petitioner only

claimed that she should be allowed to contest by means of video

conferencing from U.K. The ground given by the petitioner was that

petitioner had to take care of her children, with her elder son being of

around seven years and younger son being born in January 2014.

Petitioner was set ex-parte and the Enquiry Officer has given his report

dated 8.4.2016 holding the petitioner guilty of being unauthorizedly

absent from duty. The competent authority has thereafter passed the

impugned order dated 19.8.2016 terminating the services of the

petitioner on account of unauthorized absence from duty.

4. Counsel for the petitioner has argued that merely because

there is unauthorized absence the same cannot lead to automatic

termination of services and reliance in this regard is placed upon the

judgment of the Supreme Court in the case of Krushnakant B. Parmar

Vs. Union of India and Another (2012) 3 SCC 178. Paras 16 to 21 of

this judgment are relied upon and which paras read as under:-

"16. In the case of appellant referring to unauthorized absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether "unauthorized absence from duty" amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.

17. If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorized absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.

18. In a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.

19. In the present case the inquiry officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the appellate authority, failed to appreciate the same and wrongly held the Appellant guilty.

20. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.V. Bijlani v. Union of India wherein this Court held: (SCC p.95, para 25) "25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analyzing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

21. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the inquiry officer or the Appellate Authority. Though the Appellant had taken a specific defense that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29-9-1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the inquiry officer held the Appellant guilty." (emphasis is mine)

5. Counsel for the employer/Rajya Sabha Secretariat

(represented by respondent nos.1 to 3) has contested the pleas of the

petitioner. It is argued on behalf of the employer that Enquiry Officer

in this case has given a detailed report dated 8.4.2016 giving a finding

that the petitioner has remained unauthorizedly absent from duty since

20.12.2014. The detailed report is from pages 151 to 209 of the paper

book of the present writ petition. The detailed report discusses all

aspects and evidence led to hold the petitioner guilty of unauthorized

absence from duty and conduct unbecoming of a government servant.

Accordingly, it is argued that petitioner cannot place reliance upon the

ratio of the judgment of the Supreme Court in the case of Krushnakant

B. Parmar (supra) because in that case there was no finding of the

unauthorized absence of the employee. The said judgment holds that

when there are compelling circumstances beyond control like illness,

accident, hospitalization etc., then there are valid reasons for an

employee not to report for duty but these circumstances of illness,

accident, hospitalization or similar grounds completely disabling the

employee from joining the duty and such factors beyond control of the

petitioner are not found in the facts of the present case. Learned

counsel for the employer has also filed before this Court a chart that

since the petitioner joined the present employer being the Rajya Sabha

Secretariat in September, 2004, she has availed as many as 1917 days

of leave upto 19.12.2014. Accordingly, it is argued that petitioner is

quite clearly a recalcitrant employee. On behalf of the employer,

reliance is also placed upon a recent judgment of the Supreme Court in

the case of Vijay S. Sathaye Vs. Indian Airlines Limited and Others

(2013) 10 SCC 253 to argue that once there is unauthorized long

absence from duty, such an employee is deemed to have abandoned his

services, and if the employee in spite of notice does not join duty, such

an employee is deemed to have abandoned his services and in fact in

such a case there is no need of even disciplinary proceedings.

6. The facts of the present case show that claim of the

petitioner at best is of petitioner being entitled to automatic

extraordinary leave. Grant of extraordinary leave is not a matter of

legal right and every employer before granting extraordinary leave has

to balance various aspects including the working requirement of the

employer not being affected on account of leaves which are being

sought by an employee. This is all the more so in the present case

where it is found that out of a total of approximately 10 years of

services of the petitioner with the present employer till 19.12.2014,

petitioner had been on leave for 1917 days i.e around 5½/6 years.

Accordingly, in the opinion of this Court, such an employee as the

petitioner who only wants to stay in U.K. with her husband who is

doing private services, cannot contend in the facts of the present case

that she is entitled to extraordinary leave on account of her children

being small. Of course legal entitlement to leave is always as regards

leave which is legally authorized i.e maternity leave or child care leave

etc, however extraordinary leave is not a matter of right, more so in the

facts of the present case where as stated above showing that till

19.12.2014 when the petitioner had to rejoin her duties petitioner had

availed of as many as 1917 days of leave. Not only the above facts, it

is further seen that if petitioner had valid reasons on account of infancy

of her child or tender age of her elder child to join till 19.12.2014, then,

there was no reason why petitioner should not have joined from May,

2015 when the period for which she had applied for extraordinary

leave had also expired. The petitioner in fact admittedly did not join

the services of the employer even till 21.12.2015 when the subject

Office Memorandum was served upon the petitioner. Therefore in the

facts of the present case, petitioner cannot argue that she is entitled to

the benefit of ratio of the judgment of the Supreme Court in the case of

Krushnakant B. Parmar (supra) as no circumstances beyond the

control of the petitioner are found to exist to remain absent from duty.

The present is a case of an employee wanting to do her duties at her

own convenience and which cannot be permitted to be done.

7. I may also note that, though this aspect is not relevant in

the present case because enquiry proceedings have been conducted,

that the Supreme Court in the case of Vijay S. Sathaye (supra) has

held that unauthorized absence of long period would amount to

abandonment of services and therefore no order of termination of

services thereafter has to be passed against the employee. The relevant

paras of the judgment of the Supreme Court in the case of Vijay S.

Sathaye (supra) are paras 12 to 16, and which paras read as under:-

"12. It is a settled law that an employee cannot be termed as a slave, he has a right to abandon the service any time voluntarily by submitting his resignation and alternatively, not joining the duty and remaining absent for long. Absence from duty in the beginning 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 without requiring any order to be passed by the employer.

13. In Jeewanlal (1929) Ltd. v. Workmen this Court held as under: "6....there would be the class of cases where long unauthorised absence may reasonably give rise to an inference that such service is intended to be abandoned by the employee."

14. For the purpose of termination, there has to be positive action on the part of the employer while abandonment of service is a consequence of unilateral action on behalf of the employee and the employer has no role in it. Such an act cannot be termed as "retrenchment" from service.

15. In Buckingham and Carnatic Co. Ltd. v. Venkatiah, while dealing with a similar case, this Court observed:

"5......Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf." A similar view has been reiterated in G.T. Lad v. Chemicals and Fibres of India Ltd.

16. In Syndicate Bank v. Staff Assn. and Aligarh Muslim University. v. Mansoor Ali Khan, this Court ruled that if a person is absent beyond the prescribed period for which leave of any kind can be granted, he should be treated to have resigned and ceases to be in service. In such a case, there is no need to hold an enquiry or to give any notice as it would amount to useless formalities. A similar view has been reiterated in Banaras Hindu University v. Shrikant, Chief Engineer (Construction) v. Keshava Rao and Bank of Baroda v. Anita Nandrajog."

8. Finally, at the risk of repetition, it is required to be stated

that in the enquiry proceedings when an employee does not appear and

accordingly is proceeded ex-parte and where the charges against the

employee are proved, the scope of this Court for hearing of a writ

petition under Article 226 of the Constitution of India to challenge

such an Enquiry Report and the consequent order of the disciplinary

authority is extremely constricted to examine whether there are such

issues which are fundamental issues going to root of the matter, and

only which issues have to be examined and not factual issues of merits

which are decided as per the Enquiry Report. Therefore, this is another

reason for this Court to accept the Enquiry Officer's Report as also the

impugned order passed by the disciplinary authority.

9. To complete the narration of the claim of the petitioner for

grant of extraordinary leave, it is noted that petitioner claimed that she

suffered from hyper-tension and hence could not join duties, but, this

plea is completely misconceived because to substantiate this plea

petitioner has not filed any medical certificate of being medically unfit

for performing duties, and all that the petitioner has filed is just one

prescription of some medicines for hyper-tension.

10. Dismissed.

FEBRUARY 20, 2017                             VALMIKI J. MEHTA, J
Ne