Delhi High Court
Pramod vs Cement Corporation Of India (Cci) on 10 July, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th July, 2018
Pronounced on: 10th July, 2018
+ W.P.(C) 2598/2003
PRAMOD ..... Petitioner
Through: Mr. M. Dutta, Advocate
versus
CEMENT CORPORATION OF INDIA (CCI)
.... Respondent
Through Mr. Arun Birbal, Advocate
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
% JUDGMENT
C. HARI SHANKAR, J.
1. Disciplinary proceedings, initiated against the petitioner
Pramod, by the respondent-Corporation vide Memorandum dated 10th
February, 1997 (hereinafter referred to as "the charge-sheet")
culminated inexorably, in the passing of an order, dated 29th July,
1997, removing the petitioner from service. Appeal and review,
thereagainst, having failed to yield any favourable outcome, the
petitioner is before this Court, by means of the present writ petition.
2. The petitioner, who was working as PS/Steno in the office of
the respondent-Cement Corporation of India was, admittedly, on
earned leave from 24th July, 1996 to 3rd August, 1996, owing to his
brother‟s hospitalization. According to the petitioner, he met with an
accident, incapacitating him from joining duty on 3 rd August, 1996.
Vide telegram dated 14th August, 1996, the petitioner applied for
extension of his leave till 31st August, 1996, in support of which he
submitted a certificate of Dr. Sunita Bountra, MBBS, certifying that
he was under her treatment "for accidental injury Rt leg with irritable
bowel syndrome from 1.8.96.", for which she advised him complete
bed rest from 3rd August, 1996 to 31st August, 1996. The respondent
rejected the petitioner‟s application, vide telegram dated 16th August,
1996, which informed him he was being marked absent from duty.
3. Vide a second telegram dated 28th August, 1996, the respondent
directed the petitioner to report for duty, again reiterating that he was
being marked absent, for the days when he did not so report.
4. The petitioner applied, vide letter dated 2nd September, 1996, for
extension of leave till 15th September, 1996. With the said application,
he annexed two more certificates, from Dr. S. Bountra, advising him
rest for a period of 15 days from 1st September, 1996 and, thereafter,
for another 15 days from 16th September, 1996. The respondent
replied, vide letter dated 27th September, 1996, returning the copy of
the Medical Certificate annexed by the petitioner and directing him to
report for duty immediately, failing which action, as per the Conduct
Rules of the respondent-Corporation, was threatened.
5. According to the petitioner, he was next examined by one Dr.
R. Kumar, MD who issued the following certificates, on his letter
head:
"Dr. KUMAR‟S MEDICAL CENTRE
3, CENTRAL MARKET, LODI COLONY
NEW DELHI-110003
Dr. Kumar R. Dr. V. Kumar Dr.S.K. Sethi Dr. Praful Durani Dr.(Mrs.) R. Amarnath
MD. M.B.B.S M.B.B.S DLO M.B.B.S. M.B.B.S.
Regd. No.1251 Regd. No.3805 Regd. No. 15076 Regd. No.2837 Regd.No.26974
Certified that Mr.Pramod Verma, whose signature is
given below is under my treatment for Lumbago (AC) due to
IBS and is hereby advised complete bed-rest for a period of
about a fortnight which in my opinion is too necessary for his
recovery.
Sd/-
Pramod Verma Sd/-
15/10/96 1/10/96
This is in continuation of the above treatment of
Mr.Pramod Verma, who is hereby advised further bed rest for
a period of about 2 weeks more since he is on the way of
recovery.
Sd/-
15/10/96"
6. On the basis of the aforementioned certificate of Dr. R. Kumar,
the petitioner again applied, vide letter dated 1st October, 1996, for
extension of leave upto 15th October, 1996. The request of the
petitioner was rejected by the respondent, vide letter dated 15th
October, 1996, informing him that leave, as sought by him, was not
sanctioned and directing him to report for duty immediately, failing
which disciplinary action would be initiated against him.
7. The petitioner did not join duty; instead, he again applied on
16th October, 1996, for extension of the leave granted to him till 20th
October, 1996.
8. Mr. Dutta, learned counsel for the petitioner, submitted that,
even thereafter, the condition of his client did not improve, in support
whereof he has drawn my attention to a prescription, dated 6th
November, 1996, of Dr. Deepak Chaudhary, Orthopaedic Surgeon,
Safdarjung Hospital, which again advised the petitioner "rest for three
weeks".
9. It would thus be seen that none of the petitioner‟s applications
for leave on medical grounds, was allowed by the respondent;
nevertheless, the petitioner continued to remain absent from duty,
submitting periodical leave applications accompanied by medical
certificates. On each occasion, he applied for "extension of leave"
which, strictly speaking, was a malapropism, as leave was never
granted in the first place.
10. Rule VII of the Leave Rules applicable to the respondent-
Corporation read thus:
"VII. MODALITIES FOR SANCTION OF LEAVE ON
MEDICAL GROUNDS
1. Leave on medical grounds whether Commuted. Half
Pay Leave. Earned Leave for employees working in the Units
in CDA/IDA pay scales will be sanctioned for their period of
illness at their headquarters only on the certificate of
Company Medical Officer.
2. Leave on medical grounds to employees working at
Corporate Office will be sanctioned for a period upto 15 days
on the basis of a certificate of authorized Medical Attendants
as defind in the Medical Attendance Rules. However, for
employees working at Zonal Office, Regional Office and
Dumps, leave on medical grounds will be sanctioned upto 90
days on the certificate of authorized medical attendant.
3. Leave on medical grounds to employees working at
Corporate office and Units for their sickness for a period of
more than 15 days and upto 90 days will be sanctioned only
after the certification of Company Medical Officer. The
employees suffering from ailment will, therefore,
compulsorily be required to consult the Company Medical
Officer for determination of their period of sickness.
4. Extension of leave on medical grounds to the
employees working at Corporate office/Units/Zonal
offices/Regional Offices proceeding on leave outside
headquarters upto a period of 90 days will be sanctioned on
the certificate of authorized Medical Attendant. However,
sanction of leave on medical grounds beyond the period of 90
days will be only on the recommendation of Medical Board
constituted by the Corporation.
5. Leave on medical grounds beyond the period of 90
days will be sanctioned to employees working at Units
Corporate Office, Zonal Offices and Regional Offices only on
the recommendations of Medical Board constituted by the
Corporation."
(Emphasis supplied)
11. "Authorised medical attendant", was defined, in clause (f) of
Rule 4 of the CCI Employees‟ (Medical Attendance) Rules, 1969
(hereinafter referred to as "the Medical Attendant Rules") thus:
"f) "authorized Medical Attendant" means a Registered
Medical Practitioner qualified in
Allopathy/Homeopathy/Ayurvedic/Unani Systems of
medicine of the choice of the employee as specified below:-
(i) NON SPECIALIST: Non-specialist doctor
will mean Graduate/Vaid/Licentiate in Allopathy/
Homeopathy/Ayurvedic/Unani systems of medicine.
(ii) SPECIALIST: Specialist doctor will mean a
post-graduate in Allopathy system of medicine or a
Medical Practitioner as defined in (i) above with more
than 13 years‟ practice.
(iii) Employee drawing pay of Rs. 800/- p.m. and
above can receive treatment either from the non-
specialist or specialist doctor.
Clarification
For Wage Board employees the „pay‟ shall mean the
pay prior to revision of Wage Board scales from
1.1.82, until it is revised appropriately for this purpose.
(iv) Other employees may receive treatment from
the non-specialist doctor. If the case is serious or of
emergent nature, such employees may, however, take
treatment from a specialist doctor provided the non-
specialist doctor certifies in writing that in view of the
seriousness or special nature of the disease, the
medical attendance by the specialist doctor is
necessary."
(Emphasis supplied)
12. The petitioner was posted at the Mumbai Zonal office of the
respondent, as is recorded in the very first paragraph of the charge-
sheet. As such, Rule VII (3) and (4) of the Leave Rules would apply to
him.
13. I may observe, here, that, though extracts of the aforementioned
Rules were submitted, across the bar, by Mr. Dutta, learned counsel
for the petitioner, Mr. Birbal, appearing for the respondent, did not,
fairly, dispute their validity.
14. In accordance with Rule VII (4) of the Leave Rules (supra), as
the petitioner had already remained absent from duty for 90 days, a
Medical Board was constituted by the respondent, to examine the case
of the petitioner. The report of the Medical Board, consisting of two
Doctors and the Deputy Manager (Medical) of the respondent-
Corporation read thus:
"A Medical Board comprising of following members was
constituted to examine Mr. Pramod an employee of Cement
Corporation of India.
1. Dr. P. K. Gupta, MBBS, MD (MED)
2. Dr. A.K. Goel, MBBS, MS (Orth)
3. Dr. O.P. Soni, MBBS, Dy. Manager (Medical), CCI
The members examined Mr. Pramod at his residence
th
on 6 of November 1996 at 3.30 P.M. Mr. Pramod was
present at his residence and cooperated with medical
examination. He complained of having backache since more
than one year due to which he is unable to work or sit for
longer time. He also complained of suffering from irritable
bowel syndrome due to which he has to go to toilet 4 to 6
times per day. There was no other complaint. He had suffered
from tuberculosis in past for which he took full treatment in
the past. He could not show any prescriptions of treatment
taken for these ailments except two prescriptions of treatment
taken for these ailments except two prescriptions slips one of
which dated 6th November was given by Orthopedics OPD of
Safdarjung Hospital. He did not know of the treatment taken
for these ailments.
The examination did not reveal any abnormality in any
of the systems of Mr. Pramod. He had no anaemia,
lymphadenopathy, jaundice, oedema feet. His blood pressure
was 120/80 mm of mercury and his pulse rate 78/mt regular
and good volume. He had no fever. His systamic examination
also did not reveal any abnormality. Abdomen was soft with
no organ enlargement detected. There was no tenderness
present anywhere in abdomen. Thorough examination of his
back also did not show any area of tenderness or abnormality.
All joints were normal with normal movements.
In the circumstances, the board is of the opinion that
Mr. Pramod is fit for duty presently. If he has any back pain it
can be effectively treated with medicines while on duty. He
has been advised to undertake an X-ray of his spine so as to
further evaluate his backache. He has been asked to submit
this to Dr. Soni latest by 8.11.1996. Existence of irritable
bowel syndrome and backache cannot be denied. These
diseases are known to cause significant disability amounting
to absence from duty. In the present case no effort has been
done to control these diseases. There has been no
consultation with any specialist during the period of three
months. No X-ray or other pathological tests are done to
confirm the diagnosis. All these points towards non-
seriousness of these symptoms.
Sd/- Sd/- Sd/-
Dr. P.K.Gupta, Dr. A.K.Goel Dr. O.P.Soni"
(Emphasis supplied)
15. A reading of the concluding para of the above extracted report
of the Medical Board discloses a pronounced degree of ambivalence.
It is first opined that petitioner was "fit for duty presently" and that, "if
he had any back pain, it (could) be effectively treated with medicines
while on duty". It is next noted that the petitioner was advised to have
an X-ray of his spine taken, so that his backache could be further
evaluated. The very next sentence states that existence of "irritable
bowel syndrome and back ache could not be denied", and also
acknowledges that these diseases "were known to cause significant
disability, amounting to absence from duty". (One presumes that what
was intended to be conveyed was that the "significant disability"
resulting from these diseases could result in the sufferer being disabled
from attending duty.) The paragraph next notes that "no effort had
been done to control these diseases" and that there had been no
consultation with any specialist during the period of three months.
This observation, too, would imply acknowledgment of the fact that he
did, in fact, suffer from the said diseases. Even so, the next sentence
states that, "no x-ray or other pathological tests" had been done "to
confirm the diagnosis". In conclusion, the report opines that "all these
point towards non-seriousness of these symptoms". How this
conclusion harmonizes with the earlier observation, in the very same
paragraph, that the existence of irritable bowel syndrome and
backache could not be denied, and that these ailments were known to
cause severe disability "amounting to absence from duty", evades
comprehension.
16. Without meaning any disrespect to the learned medical
professionals who issued the aforementioned report, it cannot but be
observed that no clear-cut opinion is deducible therefrom. The report
does, however, expressly state that the existence of irritable bowel
syndrome and backache, in the case of the petitioner, could not be
denied, and that these diseases "were known to cause significant
disability, amounting to absence from duty". A holistic reading of the
report would, therefore, seem to indicate that the petitioner, was, in
fact, suffering from the said ailments, which could have disabled him
from attending to his duties.
17. The Medical Board having been constituted by the respondent,
in accordance with the Leave Rules applicable to it, the benefit of the
said report, as also of any ambivalence therein, must necessarily enure
in favour of the petitioner.
18. I am, therefore, inclined to accept the petitioner‟s stand that he
was, in fact, suffering from ailments which disabled him from
attending to his daily duties. His requests for leave, to which reference
has already made hereinabove, have, therefore, to be regarded as
bonafide and justified. The respondent, too, was periodically rejecting
the requests, of the petitioner, for leave, without giving any reasons
for such rejection. This is, to say the least, unfortunate, especially in
view of Rule VII (2) of the Leave Rules, which ordains that "for
employees working at Zonal Office, Regional Office and Dumps, leave
on medical grounds will be sanctioned upto 90 days on the certificate
of authorized medical attendant". At no stage did the respondent
question the genuineness or validity of the certificates submitted by
the petitioner in support of his applications for leave. Neither did the
respondent, at any stage, require the petitioner to have himself
examined by any other doctor. Given the fact that the existence, of the
aforementioned ailments of "irritable bowel syndrome" and lumbago,
in the case of the petitioner, stands impliedly acknowledged by the
Medical Board, and the fact that these diseases were admittedly
debilitating in nature, it cannot be said that the petitioner was willfully
or unjustifiably absenting himself from duty.
19. I may observe, here, that the Medical Board having been
constituted by the respondent, in accordance with its own Leave
Rules, the respondent is necessarily bound by the report of the
Medical Board. I may also note, here, that a valiant effort was made,
by Mr. Birbal, to interpret the words "cannot be denied", in the
concluding paragraph of the report, as meaning "is impossible to
determine", but this Court is unaware of any etymological support for
such an interpretation.
20. On 26th November, 1996, the respondent issued to the petitioner
the charge-sheet, already referred to in para 1 (supra), proposing to
hold an inquiry, against the petitioner, under Rule 30 of the Cement
Corporation of India Conduct Disciplinary and Appeal rules
(hereinafter referred as "CCI CDA Rules"), alleging that he was guilty
of misconduct, and seeking his response thereto. The statement of
Imputations of Misconduct, which constituted Annexure II to the
charge-sheet, read thus:
"Shri Pramod, P.S.-I while posted at Bombay Zonal Office
proceeded on Earned Leave from 24.7.96 to 3.8.96 for visiting
Delhi on the grounds of his brother‟s hospitalization. Sh.
Pramod vide his telegram dated 14.8.96 informed Zonal
Manager, Mumbai that he met with an accident and requested
for extension of leave upto 30.8.96. Vide telegram dated
16.8.96, he was communicated that the leave has not been
granted and he was being marked absent from duty.
Again vide telegram dated 28.8.96, he was intimated to
report for duty and for the period of absence he was being
marked absent. Sh.Pramod vide his letter dated 2.9.96
requested Zonal Manager, Mumbai for extension of leave
upto 15.9.96 enclosing therewith a medical certificate
advising rest from 3.8.96 to 31.8.96.
Sh.Pramod vide his FAX dated 26.9.96 again requested
Zonal Manager for further extension of his leave upto 30.9.96.
Further, the Zonal Office vide its letter dated 27.9.96 returned
the fax copy of the medical certificate with the direction to
report for duty immediately failing which action will be
initiated as per the Conduct Rules of the Corporation.
Sh.Pramod instead of complying with the repeated
directions given by his higher authority, requested vide his
letter dated 1.10.96 for further extension of leave upto
15.10.96 enclosing a photo copy of the medical certificate in
support of his request. He was immediately informed by the
Zonal Office vide its letter dated 15.10.96 that the leave was
not sanctioned to him with the direction to report for duty
immediately failing which disciplinary action will be initiated.
Sh.Pramod in utter disobedience of the direction of the
higher authority continued to remain absent.
In terms of Rule VII-4 of CCI Leave Rules, any leave
on medical grounds for more than 90 days is to be considered
based on the report of the Medical Board. Since the absence
of Sh.Pramod on alleged medical grounds exceeded 90 days
and Sh.Pramod was staying in Delhi, a Medical Board was
constituted for medical examination of Sh.Pramod consisting
of following :-
1. Dr.P.K. Gupta, MD-Physician
2. Dr.A.K. Goel, MS-Orthopadic Surgeon
3. Dr.O.P. Soni, Dy.Manager (Medical)
Accordingly, Sh.Pramod was communicated vide letter
No.PDE/8149/P/82/404 dated 4.11.1996 in regard to his
medical examination at his residence on 6.11.96 at 3.30 PM.
The Medical Board visited the residence of Sh.Pramod
at 27, Himvarsha Apartments, 103, I P Extension, Delhi-92 on
6.11.96 at 3.30 PM. Sh.Pramod was available at his residence
and the doctor members of the Medical Board examined him
thoroughly. He was also directed to undertake an X-ray of his
spine and to submit the same to Dr.OP Soni, Dy.Manager
(Medical) latest by 8.11.96 which Sh.Pramod failed to submit.
The Medical Board in its report concluded that though
Sh.Pramod complained of having backache and suffering
from irritable bowel syndrome but he could not show any
prescription of treatment taken for these ailments except two
prescription slips one of which dated 6.11.96 was given by
Orthopedics OPD of Safdarjung Hospital. He could not also
explain the treatment taken for these ailments. The systematic
examination also did not reveal any abnormality. It has also
been opined that in the present case no effort has been done to
control these diseases. There has been no consultation with
any specialist during the period of 3 months. No x-ray or
other pathological tests were conducted to confirm the
diagnosis. Thus, it has been concluded by the Medical Board
that Sh.Pramod is fit for duty.
Based on the report of the Medical Board, the Zonal
Manager, Mumbai vide its letter dated 12.11.96 sent under
registered post and UPC to Sh.Pramod at 27, Himvarsha
Apartments, 103, I P Extension, Delhi-92 informed that
keeping in view of the fact that Medical Board declared him
fit for duty, he should report for duty latest by 18.11.96.
Sh.Pramod, however, in defiance of the instructions, has not
reported for duty so far, thereby his absence from duty from
4.8.96 till date is unauthorized.
The above acts on the part of Sh.Pramod, PS-I amounts
to willful absence from duty without leave. It also amounts to
wilful insubordination of lawful and reasonable orders of
higher authorities. His entire conduct is also subversive of
good behavior or of the discipline of the Corporation."
21. Annexure III to the charge-sheet enlisted, as the documents, on
the basis of which, alone, the charges against the petitioner were
proposed to be sustained, the representations, dated 1 st January, 1997
and 12th January, 1997, of the petitioner, and the CCI CDA Rules.
22. Vide communication dated 17th February, 1997, the respondent
intimated the petitioner that Mr. K R Pillai had been appointed as
Inquiry Officer (I/O) to inquire into the aforementioned allegations
against him, and directing him to be present, for a preliminary inquiry
in that regard, on 28th February, 1997. The second para, of the said
communication, permitted the petitioner to engage a defence assistant,
who could be "any other employee of the Corporation or government
servant working or retired" who was not a legal practitioner, and
required the petitioner to intimate the name of the defence assistant
chosen by him, with address and particulars, at the earliest.
23. The petitioner responded, to the aforementioned
communication, on 12th March, 1997, proposing the name of Mr.
Surya Prakash, SE (C), SG, Rtd., to defend his case.
24. Vide order sheet dated 14th March, 1997, the I/O observed, inter
alia, as under:
"It is noted that as per normal practice for preliminary inquiry
it is not necessary to have a defence assistant. The request of
Mr. Pramod PS, Gr.I to engage the services of Mr. Surya
Prakash SE(C) (Retd.) from Delhi has been considered. As the
defence assistant is not from head-quarter station of the
employee, his request has not been accepted. Mr. Pramod is
directed to nominate his assisting Government Servant from
his head-quarter station or from the place the inquiry is held,
i.e., Mumbai. Mr. Pramod‟s request for conducting inquiry at
Delhi is also not accepted as his head-quarter is Mumbai by
virtue of his posting at CCI Mumbai Zonal Office, where
documents and witnesses are readily available.
It is also clarified that for preliminary inquiry, the assistance
of defence assistant is not considered necessary. Accordingly,
Mr. Pramod is directed to attend the same as per notice to be
issued failing which inquiry will be conducted ex-parte.
However, assistance of defence assistant may be availed once
the regular inquiry is conducted. Accordingly, separate letter
is being issued to Mr. Pramod."
(Emphasis supplied)
25. Be it noted, vide subsequent telegram dated 5th April, 1997, the
I/O directed the petitioner to read the words "preliminary inquiry", as
contained in his afore-quoted order sheet dated 14th March, 1997, as
"preliminary hearing".
26. By a subsequent communication dated 5th April, 1997, the I/O
permitted the petitioner to avail the services of Mr. Surya Prakash as
defence assistant, but rejected his request for release of TA/DA to him
for the said purpose.
27. The petitioner has specifically averred, in para 26 of his WP,
that there was no rule mandating that the defence assistant had to be
from Headquarters. He has also annexed, as Annexure P-21 to the writ
petition, an order sanctioning TA/DA in the case of another employee,
for his defence assistant to travel to the place of inquiry. The
corresponding paragraph of the counter affidavit of the respondent
contains no rebuttal thereto.
28. Vide letters dated 17th March, 1997 and 3rd April, 1997, the
petitioner was again requested, by the IO, to engage a defence
assistant from Mumbai, rather than Delhi.
29. The inquiry proceedings culminated in Inquiry Report dated 6th
June, 1997, of the I/O, which observed that neither the petitioner, nor
his defence assistant, was present, on any of the dates fixed for
inquiry, and that no effort was made, by either of them, to submit their
list of witnesses or inspect the documents in the case. The
Management closed its case on 1st May, 1997, whereafter the
Presenting Officer of the Management submitted his written brief on
9th May, 1997. No written brief was submitted by the petitioner, or by
his defence assistant. The I/O, ultimately, on an analysis of all the
evidence available, including the report of the Medical Board, held
that the petitioner had been willfully and continuously absenting
himself from duty, even after the Medical Board found him fit to
resume duty. As such, it was opined that the charge leveled against
the petitioners stood fully proved.
30. The aforementioned Inquiry Report, dated 6th June, 1997, of the
I/O was forwarded to the petitioner by the disciplinary authority, in
response whereto the petitioner wrote, on 4th July, 1997, to the
disciplinary authority, essentially protesting against non grant of
TA/DA to his defence assistant, so that he could travel from New
Delhi to Bombay. That apart, the petitioner expressed his serious
objection to the manner in which the I/O had willfully ignored the
medical condition of the petitioner, which, according to him, was
"deteriorating day by day". No other substantial submission, in
response to the findings of the I/O, was contained in the said
communication, dated 4th January, 1997, from the petitioner to the
disciplinary authority.
31. Vide order dated 29th July, 1997 (impugned herein), the
disciplinary authority, based on the findings of the I/O as contained in
his Inquiry Report dated 6th June, 1997, concurred, therewith, that the
charge against the petitioner stood fully proved. The disciplinary
authority further held that in view of the nature of the charge against
him, the petitioner deserved to be removed from service and,
accordingly, imposed, on him, the said punishment.
32. The petitioner appealed against the said decision of the
disciplinary authority to the Director (Marketing) in the respondent-
Corporation, vide communication dated 27th August, 1997. However,
the said appeal was also rejected by the Director (Marketing) vide
order dated 4th/5th February, 1997, merely opining that there was no
justification to interfere with the order of the disciplinary authority.
The petitioner appealed, further, to the Chairman-cum-Managing
Director of the respondent-Corporation; however, the said appeal, too,
was rejected, vide communication dated 24th January, 2000, which
opined, correctly, that there was no provision for a second appeal, in
the Rules applicable to the respondent.
33. The petitioner is, therefore, before this Court in the present writ
proceedings, seeking quashing of the order dated 29th July, 1997,
passed by the disciplinary authority and, consequently, reinstatement
in service with back wages and other benefits
34. I have heard detailed submissions, advanced before me by Mr.
M. Dutta, learned counsel for the petitioner and opposed by Mr. Arun
Birbal, learned counsel for the respondent.
35. Mr. Dutta initially drew my attention to the fact that the
respondent had proceeded in violation of the principles of natural
justice, by reneging on its decision to allow, to the petitioner,
representation by a defence assistant.
36. While it is true that this submission is incorrect, as the said
decision, as noted hereinabove, was subsequently withdrawn, and the
request of the petitioner for being permitted the services of Mr. Surya
Prakash, as his defence assistant, acceded to, I am convinced that the
respondent has been less than fair to the petitioner in this regard. No
rule or regulation, applicable to the respondent, requiring a charged
officer to engage a defence assistant necessarily either from the
Headquarters, or even from the place where the inquiry is being held,
has been brought to my notice, and the specific averment in the writ
petition, to the effect that no such rule or regulation existed, remains
unrebutted. It appears, therefore, that the repeated communications, to
the petitioner, by the I/O, rejecting his request for the engagement of
Mr. Surya Prakash, as his defence assistant, as he was posted at Delhi,
is not based on any requirement of the law. The recital, in the order
sheet dated 14th March, 1997, (supra), of the I/O, that "for preliminary
inquiry, the assistance of defence assistant is not considered
necessary" as also no basis in any applicable rule or regulation.
Interestingly, the I/O himself vide a specific communication dated 5th
April, 1997, directed that the words "preliminary inquiry" as
contained in the said order sheet dated 14 th March, 1997, be read as
"preliminary hearing". If that be so, the observation of the I/O is even
more unjustified, as it cannot be said, by any stretch of imagination
that, the assistance of the defence assistant during preliminary hearing
in the inquiry proceedings, is unnecessary. All the brouhaha raised by
the respondent, regarding the petitioner‟s request for engagement of
Mr. Surya Prakash as his defence assistant was, therefore, apparently
wholly unnecessary. Even after the request of the petitioner, for
engagement of Mr. Surya Prakash as his defence assistant, was
acceded to, his request for TA/DA to be paid to him, so as to enable
him to attend the inquiry proceedings, was refused. The petitioner has,
with his writ petition, annexed, as Annexure P-21, a document
evidencing payment of TA/DA by the respondent, in the case of the
defence assistant engaged by an another employee, to contend that the
respondent was not justified in refusing to do so in his case. There is
no specific answer, to this submission of the petitioner, in the counter
affidavit of the respondent.
37. As such, the petitioner was, undoubtedly, unfairly handicapped
in effectively not being permitted the assistance of Mr. Surya Prakash
as his defence assistant in the inquiry proceedings. However, in view
of the order which I propose to pass hereinafter, this aspect of the
matter may not be of much significance.
38. On merits, Mr. Dutta‟s major submission is that the advice of
the Medical Board, besides being ambivalent, could not be relied
upon, in view of the fact that the Orthopedic Surgeon in Safdarjung
Hospital had, on 6th November, 1996, advised the petitioner three
weeks‟ rest. In Mr. Dutta‟s submission, this certificate was entitled to
great weight, being that of a Specialist from the Safdarjung Hospital.
He draws my attention to the fact that there were certificates, advising
rest, to his client, till 31st January, 1997, and also after August, 1997,
though he admits that no certificates, advising him rest between
January, 1997 and August, 1997, were available on record.
39. In these circumstances, Mr. Dutta seeks to submit that the
decision to remove his client from service was, ex facie, unjust and
illegal, and deserves to be set aside.
40. Mr. Arun Birbal, learned counsel appearing for the respondent
submits, per contra, that the petitioner was an incorrigible absentee,
who remained absent till June, 1997, despite the fact that none of his
requests, for being granted medical leave, was acceded to. He draws
attention to the fact that the Medical Board had, in its report, opined
that the petitioner was fit to resume duty. Despite this, Mr. Birbal
would point out, the petitioner refused to return for duty, continuing,
instead, to submit periodical medical certificates. On my pointing out,
to him, that the charge-sheet, the conformation whereof resulted in the
petitioner‟s being removed from service, was only regarding his
unauthorized absence till 26th November, 1996, and in response to my
query, as to whether, in such circumstances, the petitioner‟s absence
from duty, after the said date, could at all be taken note of, Mr.Birbal
submits that this Court has to take a holistic view and that it would
result in a travesty of justice, if an employee such as the petitioner,
who remained absent from duty for almost a year, without any leave
being sanctioned, were permitted to be reinstated. Such an employee,
in Mr. Birbal‟s submission, was rightfully eviscerated, by the
respondent, from its establishment.
Analysis
41. While there is no doubt that the ultimate effort, of a court of
law, is the administration of justice, it is not permissible for courts to
administer justice contrary to the dictates of the law applicable. Justice
can only be said to have been meaningfully dispensed when it
harmonizes with the rule of law, and the substantive and procedural
requirements that flow, and follow, therefrom. Courts cannot, while
administering justice, needlessly afford to be swayed by sentiment, or
even considerations of what it may be regard as morality.
42. The submissions advanced by Mr. Arun Birbal are, undoubtedly
persuasive and, to a certain extent, justified as well. This Court agrees,
with Mr. Birbal, that an employee who remains unauthorizedly absent
for almost a year, ought not to be permitted to be taken back in
service. Having said that, the decision not to taken such an employee
back in service has to follow a finding that the employee has, in fact,
been on unauthorized absence for such a long period of time. Such a
finding, in turn, could be returned, in any system governed by a rule of
law, only after an opportunity is given, to the employee, to explain his
absence for the said period. Due process is the very life breath of
democracy. The paramount consideration of due process cannot
permit any finding, against a citizen of this country, which could result
in civil consequences to her, or him, which is not preceded by grant of
adequate and sufficient opportunity to explain the perceived lapse.
43. Applying these principles to the facts of this case, it is apparent
that the charge-sheet, dated 26th November, 1996, alleged
unauthorized absence, from duty, by the petitioner, till the date of the
charge-sheet, and only till that date. The concluding sentence of the
charge-sheet reads thus:
"Sh.Pramod, however, in defiance of the instructions, has not
reported for duty so far, thereby his absence from duty from
4.8.96 till date is unauthorized."
(Emphasis supplied)
44. No charge-sheet was issued, to the petitioner, regarding his
absence from duty after 26th November, 1996. Though there may be
substance, in the contention of Mr. Birbal, that the continued absence
of the petitioner from duty, even after November, 1996, till June, 1997
and, for that matter, even thereafter, was equally unauthorized, this
court is unable to return an original finding in this regard, no charge-
sheet ever having been issued to the petitioner for the period of his
absence from duty after 26th November, 1996. The impugned order,
dated 29th July, 1997, is a consequence of the charge-sheet dated 26th
November, 1996, and holds the charge, as contained in the said
charge-sheet, to stand proved. All that has been found to be proved,
by the impugned order, is therefore, unauthorized absence of the
petitioner till 26th November, 1996.
45. It is clarified, here, that in view of the fact that these
proceedings impugned the order dated 27th July, 1997, which is a
culmination of the disciplinary proceedings which stood initiated, vide
charge-sheet dated 26th November, 1996, I am not entering into the
question of absence of the petitioner for the period after 26 th
November, 1996, or any consequence which, in law, the petitioner
may have to suffer therfor. I have only considered whether, (i) the
finding of the disciplinary authority, that the charge-sheet issued to the
petitioner, stood proved, is justified on facts and in law, and (ii) the
removal, of the petitioner from service, on that count, was sustainable.
46. I have already opined, hereinabove, that the report of the
Medical Board was ambivalent in nature, and, in fact, acknowledged
the fact that the petitioner was suffering from irritable bowel
syndrome and backache (in fact, lumbago), which were debilitating in
nature, and could result in the employee concerned having to remain
absent from duty. That being so, the absence of the petitioner, from
duty, cannot be regarded as deliberate, but has to treated as
attributable to his medical condition. No doubt, none of the
petitioner‟s requests for grant of leave were acceded to by the
respondent. In no case, however, was any reason provided for
rejecting the petitioner‟s request. Neither has the respondent, at any
stage, chosen to question the correctness of the said certificates, by
which the petitioner was periodically, advised bed rest. Such an
approach, in my view, cannot sustain the scrutiny of law, especially in
view of Rule VII(2) of the Leave Rules. In my opinion, if the
applicable rule, as in the present case, ordains that medical leave "will
be sanctioned upto 90 days on the certificate of an authorized medical
attendant," and the employee concerned annexes, with his application
for leave, a certificate, by an "authorized medical attendant", advising
him to take rest upto 90 days, the employer is not at liberty to reject
the request without any reason whatsoever. Any such rejection would
be ex facie capricious in nature. If at all the employer feels that,
despite the employees‟ request being accompanied by the requisite
medical certificate, it does not deserve to be allowed, he is required to
put the employee on notice in this regard, specifically putting, to him,
the reason why his request does not merit favourable consideration,
and giving him an opportunity to respond thereto. These are the bare
modica of due process and fair play, which cannot be sacrificed.
47. Punishment, consequent on disciplinary proceedings, cannot be
founded on any allegation, in excess of that contained in the charge-
sheet issued to the employee concerned. The wording of the
allegation, in the charge-sheet in the present case, makes it apparent
that it is restricted to the absence, of the petitioner, from duty, till the
date of issuance of the charge-sheet, i.e. 26th November, 1996.
Howsoever reprehensible, in the estimation of the respondent, the
continued absence of the petitioner, from duty, after 26 th November,
1996, may appear, the disciplinary authority, adjudicating the charge-
sheet dated 26th November, 1996, would have no jurisdiction to enter
into that arena.
48. In that view of the matter, while the petitioner, undisputedly,
remained absent from duty, without sanction of leave, such absence
being actually attributed to the medical condition from which the
petitioner was suffering - which, even as per the report of the Medical
Board was disabling in nature - the default, on the part of the
petitioner, cannot be regarded as one that justified removing him from
service altogether. The respondent is also to blame, to an extent, in
failing to have taken stock of the medical condition of the petitioner;
as already noted hereinabove, if the respondent felt, at any time, that
the petitioner‟s medical condition was not as serious as he made it due
to be, or that the advice, to him, to remain on bed rest was not
justified, the respondent could have subjected the petitioner to a repeat
medical examination, or required him to take the opinion of an another
doctor, which it did not choose to do.
49. Where medical grounds are cited, by an employee, as
justification for his remaining absent from duty, the inquiry officer, as
well as the disciplinary authority, are required to examine this aspect
of the matter, while contemplating the action, if any, required to be
taken against the officer. [Refer Shri Bhagwan Lal Arya vs
Commissioner of Police, (2004) 4 SCC 560, Krushnakant B. Parmar
vs U.O.I., (2012) 3 SCC 178 and Chennai Metropolitan Water
Supply and Sewerage Board vs T. T. Murali Babu, (2014) 4 SCC
108] Unfortunately, in the present case, I do not find sufficient
application, of mind, to the medical condition of the petitioner, either
by the I/O or by the disciplinary authority. The I/O has proceeded on
the premise that the Report of the Medical Board incriminated the
petitioner, and belied his submission of being unfit to join duty
whereas, as already noticed by me hereinabove, it may not be possible
to interpret the said Report in such a fashion. The punishment order,
dated 29th July, 1997, issued by the disciplinary authority, for its part,
does not disclose any independent application of mind whatsoever,
and merely expresses complete concurrence with the findings of the
I/O. No notice, whatsoever, has been taken, of the certificates
submitted by the petitioner, periodically, which recommended
continued rest, and the correctness whereof was never questioned, by
the respondent, directly or indirectly. The import of Rule VII(2) of the
Leave Rules has also not been examined. Neither do I find any
conscious application of mind, on the part of the disciplinary
authority, regarding the quantum of punishment to be imposed on the
petitioner. The decisions of the Supreme Court, cited hereinabove,
indicate that, in disciplinary proceedings, against an employee, on the
ground of unauthorised absence from duty, where medical grounds are
cited for the absence, these grounds are necessarily to be borne in
mind while examining the issue of whether any misconduct could, at
all, be said to have been committed. Even where the absence is found
to be unjustified, removal/dismissal from service cannot automatically
be awarded, especially where the absence from service is on medical
grounds, and cannot be regarded as "wilful".
50. In view of the factual and legal position outlined hereinabove, it
is obvious that the decision, of the respondent, to remove the
petitioner from service, cannot sustain scrutiny. The fact that (i) the
charge-sheet was limited to the absence of the petitioner, from duty,
till the date of its issuance, i.e. 26th November, 1996, (ii) the petitioner
had, in fact, submitted medical certificates, advising him periodical
rest, at least till 31st October, 1996, (iii) the respondent had itself given
time, to the petitioner, to re-join duty, till 18th November, 1996, read
with the ambivalent nature of the Report of the Medical Board, I am of
the considered opinion that, apart from the fact that it has been
awarded without proper application of mind, the punishment of
removal from service was ex facie disproportionate to the misconduct,
if any, that could be said to have been committed by the petitioner.
51. Consequent upon the above observations and findings, the
present writ petition is disposed of, in the following terms:
(i) The impugned order, dated 29th July, 1997, removing the
petitioner from service, is quashed and set aside.
(ii) The proceedings are remanded to the I/O (who would,
needless to say, have to be appointed afresh), for
reconsideration, keeping in view the observations and findings
returned hereinabove.
(iii) In view of the law laid down in Managing Director,
E.C.I.L. vs B. Karunakar, (1993) 4 SCC 727, the petitioner
shall be treated as on suspension from the date of passing of the
impugned order, i.e. 29th July, 1997. He shall, consequently, be
entitled to subsistence allowance, including arrears thereof, , in
accordance with law, from the said date. The said amount shall
be disbursed to the petitioner within 4 weeks from the date of
receipt, by the respondent, of a certified copy of this judgement.
(iv) The issue of back-wages, if any, to be paid to the
petitioner, would be considered consequent on the de novo
decision of the disciplinary authority.
50. In order to avoid any delay, it is made clear that the petitioner
would be at liberty, if he so desires, to engage the services of a
defence assistant, but would not be entitled to any TA/DA in that
regard.
51. Needless to state, if the petitioner is aggrieved by any penalty
which may be imposed by the respondent, his rights to avail
appropriate remedies, in that regard, would stand reserved.
52. Before parting, it is once again reiterated that this judgement
adjudicates only on the legality of the order dated 29th July, 1997, and
does not consider, directly or indirectly, the justifiability of the
absence, from duty, of petitioner after 26th November, 1996, and is not
to be read as any expression of opinion in that regard. Any action, if
lawfully taken by, or available to, the respondent, against the
petitioner, for the said period of absence, would not be affected, in any
way, by this judgement.
53. The writ petition stands disposed of accordingly, with no order
as to costs.
C.HARI SHANKAR
(JUDGE)
JULY 10, 2018
gayatri
