Orissa High Court
Rashmi Rekha Mohapatra vs The Commissioner on 21 November, 2023
Author: B.R. Sarangi
Bench: B.R. Sarangi
ORISSA HIGH COURT : CUTTACK
WP(C) No.12738 of 2019
In the matter of an Application under Article 226/227 of
the Constitution of India, 1950
---------------
Rashmi Rekha Mohapatra
Aged about 64 years
Wife of Sudhakar Mohapatra
At: Nurupur Road, P.O.: Motiganj
P.S./Town/District: Balasore ... Petitioner
-VERSUS-
1. The Commissioner
Kendriya Vidyalaya Sangathan
Headquarters New Delhi
18, Institutional Area
Saheed Jeet Singh Marg
New Delhi 3 110 016
2. Joint Commissioner
Kendriya Vidyalaya Sangathan (Administration)
Headquarters New Delhi
18, Institutional Area
Saheed Jeet Singh Marg
New Delhi 3 110 016
3. Deputy Commissioner
Kendriya Vidyalaya Sangathan
Bhubaneswar, District: Khordha
4. Principal
Kendriya Vidyalaya
At/P.O./District: Angul
5. Principal
Kendriya Vidyalaya
WP(C) No. 12738 of 2019 Page 1 of 85
At/P.O.: Mancheswar
Bhubaneswar, District: Khordha
6. The Registrar
Central Administrative Tribunal
Cuttack Bench, Cuttack ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : M/s. Karunakar Rath and
Biswajit Mohapatra,
Advocates
For the Opposite parties : Mr. Hrusikesh Tripathy,
Advocate
P R E S E N T:
THE HONOURABLE ACTING CHIEF JUSTICE DR. B.R. SARANGI
AND
THE HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 07.11.2023 :: Date of Judgment : 21.11.2023
JUDGMENT
MURAHARI SRI RAMAN, J.--
THE CHALLENGE:
Assailing the Order dated 27.03.2019 of the Central
Administrative Tribunal, Cuttack Bench, Cuttack passed
in Original Application being O.A. No.260/229/2012
filed under Section 19 of the Administrative Tribunals
Act, 1985, the instant writ petition has been filed at the
behest of the petitioner-retired teacher of Kendriya
Vidyalaya under Article 226/227 of the Constitution of
India beseeching following reliefs:
<Therefore, it is most respectfully prayed that this Hon9ble
Court may be graciously pleased to admit this writ
petition, call for the records, issue rule nisi calling upon
the opposite parties to show cause as to why the Order
dated 27.03.2019 shall not be quashed and why the
petitioner shall not be allowed all benefits as prayed for
before the learned Central Administrative Tribunal along
with retiral benefits, failing to show cause or showing
insufficient cause/no cause, issue the writ of certiorari in
quashing the Order dated 27.03.2019
and pass necessary Order directing the opposite party
Nos.1 to 5 to grant all arrear financial service benefits and
consequential benefits to the petitioner along with retiral
benefit
and pass such other writ/writs, order/orders,
direction/directions as may be deemed fit and proper.=
THE FACTS:
2. In the petition the writ petitioner while alleging that the
Order dated 27.03.2019 passed by the learned Central
Administrative Tribunal in O.A. No.260/229 of 2012, as
illegal, arbitrary, misconceived, non-application of mind
and non est, questioned the legality of the Order bearing
No. F.15064/11-1/AP/2011-KVS (Vig.), dated
11/13.01.2012 of the Joint Commissioner
(Administration) & Appellate Authority, Kendriya
Vidyalaya Sangathan, New Delhi (for short, <Appellate
Authority=), who declined to show indulgence in the
Order bearing No. 335164 F.37-4 / 81(d) / 2007- KVS
(BBS), dated 14/22.09.2010 passed by the Assistant
Commissioner, Appointing Authority & Disciplinary
Authority of Kendriya Vidyalaya Sangathan, Regional
Office, Mancheswar, Bhubaneswar (for brevity,
<Disciplinary Authority=). It is stated by the petitioner
that further prayer was made before the Central
Administrative Tribunal to quash both the orders. It was
also prayed to allow her to perform her duty in Kendriya
Vidyalaya at Balasore/ Bhubaneswar/ Angul or in the
alternative to allow her to retire voluntarily.
2.1. The factual matrix as pleaded by the petitioner reveals
that while working as a primary teacher at Kendriya
Vidyalaya, Angul, she was required to attend workshop
at Paradeep. She suddenly fell ill on the way to Paradeep
on 07.05.2007 and sent an application to the Principal,
Kendriya Vidyalaya, Angul for according leave on
medical ground. She proceeded to Balasore for getting
treatment by her physician at Balasore Hospital. It is the
case of the petitioner that she had to remain under
constant treatment of the Physicians at Balasore
Hospital and accordingly, she sent applications for
extension of leave from time to time through registered
post.
2.2. While she was getting treatment at Balasore, after six
months she was issued with Memorandum bearing
No.28717-F.13-Gen(4)/2007-KVS (BBSR-HR), dated
06.11.2007 by the Assistant Commissioner & Ad hoc
Disciplinary Authority citing provisional loss of lien on
post held for remaining absent since 06.05.2007 till that
date without sanction of leave and was asked to submit
show cause reply failing which she would be removed
from service of Kendriya Vidyalaya Sangathan as per
Article 81(D) of the Education Code for Kendriya
Vidyalayas.
2.3. Having not afforded adequate opportunity of being
heard, the petitioner was removed from service by the
Assistant Commissioner & Ad hoc Disciplinary Authority
by Order No.34117-F.13-GEN(4)/2007-KVS (BBSR-HR),
dated 09.01.2008.
2.4. Being dissatisfied with said order of removal, the
petitioner preferred an appeal to the Joint Commissioner
(Administration) & Appellate Authority, Kendriya
Vidyalaya Sangathan, New Delhi on 08.02.2008. The
Joint Commissioner (Administration) & Appellate
Authority instructed her to appear on 04.08.2008, but
the petitioner prayed for two months9 time. Without
allowing further time, the Joint Commissioner
(Administration) & Appellate Authority rejected the
appeal vide Order dated 12.08.2008 and as such,
confirmed the order of removal dated 09.01.2008.
2.5. Being aggrieved, the petitioner preferred further appeal
to the Commissioner, Kendriya Vidyalaya Sangathan on
29.08.2008. Alleging non-consideration, the petitioner
approached the Central Administrative Tribunal,
Cuttack Bench, Cuttack by way of Application being
O.A. No.426 of 2008, which came to be disposed of on
23.04.2010 with the following Order:
<In the instant case, admittedly, the applicant has not
been heard before the punishment of removal from service
could be passed by the Appointing Authority by resorting
to Article 81(D)(6) of the Education Code as she was ill
and not in a position to move, the circumstance being
beyond control. Apart from the above, the fact that the
applicant9s prayer for voluntary retirement from service
before the punishment could be passed is pending
consideration cannot be brushed aside. In the
circumstances, we feel that the ends of justice would be
met if the applicant is given an opportunity of being heard
by the Appointing Authority. In view of this, we quash the
impugned order of removal from service passed by the Ad
hoc Disciplinary Authority as well as the order passed by
the Appellate Authority rejecting the appeal preferred by
the applicant against the said order of removal and remit
the matter back to the Appointing Authority/Ad hoc
Disciplinary Authority with direction to give an
opportunity to the applicant of being heard and pass
orders as deemed fit and proper in accordance with law.
At the same time, we would also direct the Respondent-
Department to consider the applicant9s prayer for
voluntary retirement from service.
The above exercise shall be completed within a period of
90 days from the date of receipt of this order.
With the above observation and direction, this Original
Application is disposed of. No costs.=
2.6. The Disciplinary Authority issued a letter to the
petitioner to appear in person on 31.08.2010.
Accordingly, the petitioner appeared before said
authority and submitted medical fitness certificate along
with joining report for resuming the work as the order of
removal had already been quashed by the learned
Central Administrative Tribunal. But the Disciplinary
Authority did not accept the medical fitness certificate
and allow her to resume duty. Vide Order dated
14/22.09.2010 the Disciplinary Authority observed that
there is no scope to reinstate the petitioner in Kendriya
Vidyalaya Service as per the Codal provision under
Article 81(D) of the Education Code for Kendriya
Vidyalayas <or grant of voluntary retirement as per Rule
48-A of the Central Civil Service (Pension) Rules 1972=.
2.7. Challenging said Order dated 22.09.2010 of the
Disciplinary Authority, appeal was preferred, which
came to be dismissed vide Order dated 11/13.01.2012.
2.8. Still aggrieved, the petitioner filed O.A. No.260/229 of
2012 assailing the Order dated 14/22.09.2010 passed
by the Disciplinary Authority as affirmed by the
Appellate Authority by Order dated 11/13.01.2012.
2.9. The petitioner averred that, in effect, there was no
removal from service of Kendriya Vidyalaya as the Order
dated 09.01.2008 removing her from service was
quashed by the learned Central Administrative Tribunal.
2.10. On being certified to be fit to resume her duty, she
submitted joining report, but the same was not
accepted. Therefore, it is submitted that she was
restrained and the Disciplinary Authority was illogical in
saying <there is no scope to reinstate= the petitioner. The
petitioner has got right to perform duty.
2.11. It is stated that the petitioner was initially appointed as
primary teacher and but for her illness, she had been
performing duty since 1983. For remaining absent for
around six months, she had furnished leave application
citing medical urgency supported by medical certificate.
2.12. Observing that instead of attending workshop at
Kendriya Vidyalaya at Paradip during 06.05.2007 to
08.05.2007, the petitioner having gone back to her
native at Balasore sent leave application citing medical
urgency and the correspondences made to her turned
out to be futile as she declined to accept, the learned
Central Administrative Tribunal dismissed the original
application.
2.13. Reiterating her stand before the learned Central
Administrative Tribunal, the petitioner has attacked the
Order dated 27.03.2019 passed in O.A. No. 260/229 of
2012 in the instant writ petition on the grounds inter
alia that since the learned Central Administrative
Tribunal had quashed the order of removal and directed
for hearing afresh on affording opportunity of hearing,
the Authorities concerned should have appreciated the
factual merit of the matter taking into consideration the
medical fitness certificate and allowed the petitioner to
resume her duty as teacher and in the alternative
allowed her to opt for voluntary retirement. The further
ground of the petitioner was that accepting the proposal
for voluntary retirement, the authorities should have
considered for extending pension and retiral benefits.
2.14. With the above backdrop, the petitioner knocked the
doors of this Court by way of filing this writ petition
under Article 226/227 of the Constitution of India with a
prayer to quash the Order dated 27.03.2019 passed by
the Central Administrative Tribunal and direct the
opposite party Nos. 1 to 5 to grant <all arrear financial
service benefits and consequential benefits=.
3. Responding to the averments and contents of the writ
petition, the opposite party Nos.1 to 5 filed counter
affidavit and justified the action taken against the
petitioner.
3.1. Show-Cause Notice under Article 81(D)(3) of the
Education Code for Kendriya Vidyalaya Sangathan (for
convenience referred to as <Code=) was issued vide
Memorandum dated 06.11.2007 inviting response from
the petitioner with respect to her unauthorized absence
for a period of more than fifteen days with effect from
06.05.2007. The said Memorandum dated 06.11.2007
was forwarded by the Principal, Kendriya Vidyalaya,
Angul to the petitioner in her residential address at
Balasore vide Letter dated 13.11.2007 against which the
petitioner submitted her representation dated
20.11.2007. The petitioner explained that having joined
in Kendriya Vidyalaya, Angul on 27.03.2007, as per
orders of the Commissioner, Kendriya Vidyalaya
Sangathan, she was directed to attend the workshop at
Kendriya Vidyalaya, Paradeep Port from 6th to 8th May,
2007, but due to sudden illness she could not attend,
but went to Balasore for treatment and sought for a
posting at Kendriya Vidyalaya, Balasore or permit her to
make application for Voluntary Retirement. The
petitioner sent leave applications and Medical Sickness
Certificate from time to time with different Outdoor
Patient Docket numbers of Balasore Sadar Hospital.
While medicine was being prescribed by different
doctor(s), Medical Sickness Certificate was furnished
prepared by another doctor. Besides this, there is no
continuity in her medical treatment for sickness. The
Medical Sickness Certificates submitted by the petitioner
established that the petitioner visited the doctor(s) of
Outdoor Patient Department of District Headquarter
Hospital, Balasore.
3.2. After discussing facts of the case of the petitioner
elaborately in connection with removal from Kendriya
Vidyalaya Sangathan Service under Article 81(D) of the
Code the Appellate Authority had disposed of the appeal
on 11/13.01.2012 and said Authority did not find favour
with her application for voluntary retirement as her
qualifying service was 18 years 17 days only as against
requisite 20 years of regular service inasmuch as she
joined service with the Kendriya Vidyalaya Sangathan on
25.10.1983 and was terminated with effect from
06.05.2007, but remained absent from service for
around six years.
3.3. It has further been stated by the opposite party Nos. 1 to
5 that the competent authority communicated the order
of removal from service dated 09.01.2008 at the
residential address at Balasore, but the same got
returned with postal remark <the person knowingly did
not receive the letter; as such returned=. It is specific
case that an employee of Kendriya Vidyalaya, Angul
accompanied by a teacher and laboratory assistant of
Kendriya Vidyalaya, Balasore went to the residence of
the petitioner on 08.02.2008 to serve the said order
dated 09.01.2008, but she refused to receive the same;
finding no alternative, they have pasted said order at the
entrance door of her residence.
3.4. It is also stated in the counter affidavit that in
consideration of direction(s) of the learned Central
Administrative Tribunal vide Order dated 23.04.2010
while disposing of O.A. No.426 of 2008, wherein
challenge was laid to Order dated 12.08.2008 passed by
the Appellate Authority confirming the Order dated
09.01.2008 of the Disciplinary Authority, the case of the
petitioner was taken up for hearing. The Disciplinary
Authority considered the representation dated
31.08.2010 filed by the petitioner, and found that the
same is silent about the circumstance under which the
petitioner failed to appear before the Medical Board,
since her case was referred by the Principal, Kendriya
Vidyalaya, Angul vide Letter No.462, dated 17.09.2007
for examination by the Medical Board. Said letter sent to
the petitioner came back with postal endorsement
<Addressee refused so returned to sender=.
3.5. The Appellate Authority as also the Disciplinary
Authority considering the evidence available on record
found the behaviour of the petitioner obstinate who has
been refusing to receive the official communications from
the authority at Kendriya Vidyalaya, more so she did not
prefer to join at Kendriya Vidyalaya, Mancheswar in
Bhubaneswaher, being transferred from Kendriya
Vidyalaya, Angul. It has been observed that she was
more interested for posting at Kendriya Vidyalaya,
Balasore rather than at any other place. Therefore, the
decision not to reinstate her in service cannot be found
fault with, particularly so in view of Article 81(D) of the
Code.
3.6. As regards acceptance of prayer for voluntary retirement,
it has already been stated that the Disciplinary Authority
and the Appellate Authority clearly recorded as a matter
of fact that the petitioner served with Kendriya Vidyalaya
for 18 years and 17 days, which does not enure to the
benefit of the petitioner for determination of qualifying
service for acceptance of such voluntary retirement in
view of Rule 48A of the Central Civil Service (Pension)
Rules, 1972.
ARGUMENTS OF THE RESPECTIVE COUNSELS FOR THE PARTIES:
4. Two fold argument was advanced by Sri Karunakar
Rath, learned Advocate for the petitioner.
4.1. It has been submitted that the petitioner having joined
her service at Kendriya Vidyalaya as primary teacher on
25.10.1983 served for around 24 years and remained on
medical leave with effect from 07.05.2007, but not
06.05.2007. On account of <serious ailment she
remained absent on medical leave=. In connection with
hearing by the Disciplinary Authority in terms of
direction of the learned Central Administrative Tribunal
vide Order dated 23.04.2010 passed in O.A. No.426 of
2008, the petitioner remained physically present and
submitted medical fitness certificate with a prayer to
allow her to resume duty, which was turned down
without any germane consideration by the Disciplinary
Authority which got confirmed by the Appellate
Authority. Such fact could have been considered
favourably by the Central Administrative Tribunal while
passing impugned Order dated 27.03.2019.
4.2. Second limb of submission of Sri Karunakar Rath,
learned Advocate is that the petitioner having worked for
around 24 years, since 25.10.1983 till the date of
removal with effect from 06.05.2007, her prayer for
voluntary retirement should have been considered.
5. Strong objection has been raised by Sri Hrusikesh
Tripathy, learned counsel appearing for Kendriya
Vidyalaya Sangathan against the contentions of Sri
Karunakar Rath, learned Advocate for the petitioner and
submitted that leniency cannot be shown to the
petitioner as she remained under unauthorized leave for
long period and she having refused to receive the letter(s)
instructing her to attend the Medical Board as referred
to by the Principal of Kendriya Vidyalaya, Angul, she has
rightly been denied relief by the learned Central
Administrative Tribunal.
5.1. Arguing further, Sri Hrusikesh Tripathy, learned
Advocate for opposite party Nos.1 to 5 made fervent
submission by bringing the fact to the notice of this
Court that the petitioner approached the Central
Administrative Tribunal in O.A. No.474 of 1999; and this
Court in O.J.C. No.12545 of 1999 and O.J.C. No.13309
of 2001, wherein her transfer from Kendriya Vidyalaya,
Balasore to Kendriya Vidyalaya, Salua was subject
matter of challenge. Consequent upon direction of this
Court in O.J.C. No.13309 of 2001 vide Order dated
07.12.2006, the competent authority of Kendriya
Vidyalaya Sangathan allowed her to join her duty at
Kendriya Vidyalaya, Angul on 27.03.2007. He again
submitted that the petitioner was deputed to Kendriya
Vidyalaya, Paradeep Port to attend workshop from 6th to
8th of May, 2007, but instead of attending the same, she
went to her native place at Balasore on the plea that she
was to get treatment thereat. Being at Balasore, she had
been sending leave applications from time to time <with
different OPD numbers of Balasore Sadar Hospital and
medicines prescribed by one doctor=. It is pointed out to
the Court by Sri Tripathy that the petitioner furnished
Medical Sickness Certificate issued by another doctor.
5.2. It has been vehemently contended by Sri Hrusikesh
Tripathy, learned counsel for the Kendriya Vidyalaya
Sangathan that the very refusal to receive the letter of
the Principal, Kendriya Vidyalaya, Angul instructing her
to attend the Medical Board for examination of health
speaks volumes about the falsity of prolonged ill-health.
5.3. It is, therefore, submitted that the above facts and
circumstances as obtained on record would go to
indicate that the Disciplinary Authority and the
Appellate Authority are justified in not allowing the
petitioner to reinstate in service. Such decision of the
authorities being in consonance with Article 48(D) of the
Code, and the facts being appreciated justly by the
learned Central Administrative Tribunal, the impugned
Order dated 27.03.2019 does not deserve interference.
5.4. In furtherance of such submission, Sri Hrusikesh
Tripathy, learned counsel for the opposite party Nos.1 to
5 that the petitioner does not qualify for being
considered for voluntary retirement as well. For around
six years she was out of service of Kendriya Vidyalaya,
though joinded Kendriya Vidyalaya at Balasore in the
year 1983. As she did not join at the place of transfer
and was removed from service with effect from
06.05.2007, there is no occasion to say that she has
been working with Kendriya Vidyalaya continuously for
around 24 years. So, the authorities of Kendriya
Vidyalaya have correctly computed the period for which
she worked, i.e., 18 years and 17 days. In view of Rule
48A of the Central Civil Services (Pension) Rules, 1972,
the petitioner is not entitled to be allowed <voluntary
retirement=, rather her case can aptly be considered to
fall within connotation of <abandonment of service= in
terms of Article 81(D) of the Code.
HEARING:
6. Pleadings being completed and exchanged between the
counsel for both sides, on their consent and request the
matter is taken up for final hearing. Heard Sri
Karunakar Rath, learned Advocate for the petitioner and
Sri Hrusikesh Tripathy, learned counsel for the opposite
party Nos.1 to 5-Kendriya Vidyalaya.
RELEVANT PROVISIONS:
7. Before delving into merit of the matter, the related
provisions relevant for the present purpose are required
to be taken note of.
7.1. Articles 48, 49, 50, 51, 53, 80 and 81 of the Education
Code for Kendriya Vidyalaya Sangathan, an autonomous
body set up by the Ministry of Education and registered
as society in December, 1985 with assumption of charge
of the Kendriya Vidyalayas with effect from 01.04.1966,
provides for the following:
<Article 48.
Leave Rules.4
Leave will be admissible to employees in accordance with
the provisions of the Central Civil Services (Leave) Rules,
1972, as amended from time to time and as extended to
Kendriya Vidyalaya Sangathan employees.
Article 49.
Retention of Lien.4
Permanent employees of the Sangathan who are selected
for appointment in Central Govt. or State Govt.
Institutions/Public Sector Undertakings/Autonomous
Bodies/Semi-Government Organisations etc. will be
permitted to retain their lien on their permanent posts for
a period of two years or till they are permanently
absorbed in that Department/Undertaking, whichever is
earlier, subject to specified conditions. However,
temporary employees of the Sangathan shall be asked to
resign from the Sangathan9s service before they are
appointed in such Departments/Undertakings, etc.
Article 50.
Terminal Benefits.4
(i) The employees of the Sangathan joining service on
or after 1.1.1986 shall be eligible for terminal
benefits of Pension-cum-General Provident Fund
scheme as admissible to the Central Govt. servants.
(ii) Employees joining service before 01.01.1986 shall
be eligible for terminal benefits of Pension-cum-
General Provident Fund scheme as admissible to the
Central Govt. servants, except if they have opted for
the CPF scheme, in which case they would be
eligible for terminal benefits under the CPF scheme.
(iii) The employees shall be covered under the Kendriya
Vidyalaya Sangathan Employees9 Welfare Scheme
having the twin benefits of an insurance cover to
help their families in the event of death in service
and a lump sum payment to augment their resources
on retirement.
Article 51.
Age of Retirement.4
Every employee of the Sangathan shall retire in the
afternoon of the last day of the month in which he attains
the age of sixty years, except those who are born on the
1st day of the month who shall retire on the last day of the
previous month. Two years extension in service shall be
granted to National Awardee teachers on year to year
basis subject to physical fitness and mental alertness.
Article 53.
Resignation and Voluntary Retirement.4
(a) In cases where an employee tenders resignation and
seeks to be relieved before the expiry of one month
from the date of notice, the Appointing Authority has
the discretion either to insist on full month9s notice or
to relieve the employee before the end of the notice
period without asking for payment of salary in lieu
of notice, provided that the Appointing Authority is
satisfied that alternative arrangements can be made
and/or Vidyalaya9s work can be carried on
effectively.
(b) The employees of the Sangathan covered under the
Central Civil Services (Pension) Rules, 1972, who
have put in not less than 20 years of qualifying
service may seek voluntary retirement by giving 3
months9 notice in writing to the Appointing Authority
to retire from service voluntarily as per the
provisions of Rule 48A of the Central Civil Services
(Pension) Rules, 1972.
Article 81.
(D) Volunary Abandonment of Service.4
1. If an employee has been absent/remains absent
without sanctioned leave or beyond the period of
leave originally granted or subsequently extended,
he shall provisionally lose his lien on his post
unless:
a) he returns within fifteen calendar days of the
commencement of the absence or the expiry of
leave originally granted or subsequently
extended, as the case may be; and
b) satisfies the Appointing Authority that his
absence or his inability to return on the expiry
of the leave, as the case may be, was for
reasons beyond his control. The employee not
reporting for duty within fifteen calendar days
and satisfactorily explaining the reasons for
such absence as aforesaid, shall be deemed to
have voluntarily abandoned his service and
would, thereby, provisionally lose lien on his
post.
2. An employee, who has provisionally lost lien on his
post in terms of the aforesaid provisions, shall not be
entitled to the pay and allowances or any other
benefit after he has provisionally lost lien on his
post.
The payment of such pay and allowances will be
regulated by such directions as the Appointing
Authority may issue while ordering re-instatement of
the employee in terms of sub-clause (6) of this
Article.
3. In cases falling under sub-clause (1) of this Article,
an order recording the factum of voluntary
abandonment of service by the employee and
provisional loss of his lien on the post, shall be made
and communicated to the employee concerned at the
address recorded in his service book and/or his last
known address, to show cause why the provisional
order above mentioned may not be confirmed
(Appendix-XIII).
4. The employee may make a written representation to
the Appointing Authority, within ten days of the
receipt of the order made under sub-clause (3).
5. The Appointing Authority may, on receipt of the
representation, if any, and on perusal of materials
available on record as also those submitted by the
employee, grant, at his discretion, an oral hearing to
the employee concerned to represent his case.
6. If the Appointing Authority is satisfied after such
hearing that the employee concerned has voluntarily
abandoned his service in terms of the provisions of
sub-clause (1) of this Article, he shall pass an order
confirming the loss of employee9s lien on his post,
and in that event, the employee concerned shall be
deemed to have been removed from the service of
the Kendriya Vidyalaya Sangathan with effect from
the date of his remaining absent. In case, the
Appointing Authority is satisfied that the provisions
of sub-clause (1) of clause (D) of this Article are not
attracted in the facts and circumstances of the case,
he may order re-instatement of employee to the post
last held by him, subject to such directions as he
may give regarding the pay and allowances for the
period of absence.
7. Appellate Authority.4
An employee aggrieved by an order passed under
sub-clause (6) of this Article may prefer an appeal to
the Appellate Authority as notified by the Kendriya
Vidyalaya Sangathan from time to time.
8. Period of Limitation for Appeals.4
No appeal preferred under this Article shall be
entertained unless it is preferred within a period of
45 days from the date on which a copy of the order
appealed against is served on the appellant;
Provided that the Appellate Authority may entertain
the appeal after the expiry of the said period, if it is
satisfied that appellant was prevented by sufficient
cause from not preferring the appeal in time.
9. Form and Contents of Appeal.4
Form and contents of appeal shall mutatis mutandis
be the same as prescribed under the Central Civil
Services (Classification, Control and Appeal) Rules,
1965.
10. Consideration of Appeal.4
The Appellate Authority shall consider:
Whether the requirements laid down under sub-
clauses (1), (3), (5) and (6) of this Article have been
complied with and, if not, whether such non-
compliance has resulted in failure of justice; and
Whether the order confirming loss of the employee's
lien on his post and his consequent removal from
service is warranted on record;
And pass order confirming, modifying or setting
aside the order passed under sub-clause (6) of this
Article.
11. Implementation of Order of Appeal.4
The Appointing Authority shall give effect to the
order passed by the Appellate Authority.
12. Finality of the Order Passed in Appeal.4
The order of the Appellate Authority made under this
Article shall be final and shall not be called in
question by way of any further application/petition
for revision, review, etc.
13. Applicability of the Central Civil Services
(Classification, Control and Appeal) Rules.4
In matters falling under this Article and in those
matters alone, the procedure prescribed for holding
inquiry in accordance with the CCS (Classification,
Control & Appeal) Rules, 1965 as applicable to the
employees of the Kendriya Vidyalaya Sangathan as
also other provisions of the said rules which are not
consistent with the provisions of this Article shall
stand dispensed with.
14. Removal of Difficulties.4
Notwithstanding anything contained in any rule or
order for the time being in force in Kendriya
Vidyalaya Sangathan, the Commissioner, Kendriya
Vidyalaya Sangathan may, with the approval of the
Vice-Chairman, Kendriya Vidyalaya Sangathan,
issue such instructions as he may deem fit to remove
difficulties in the implementation of these provisions.
15. Power to Issue Instructions.4
Without prejudice to generality of the foregoing
provisions, the Commissioner, Kendriya Vidyalaya
Sangathan may, with the approval of the Vice-
Chairman, Kendriya Vidyalaya Sangathan, issue,
from time to time (whether by way of relaxation of
the aforesaid provisions or otherwise) general or
special orders as to the guidelines, principles or
procedures to be followed in giving effect to the
provisions of this Article.
Note: The following supplementary instructions have
been issued for giving effect to the above
provisions:
i) When an employee applies for a leave, on
medical grounds or otherwise, the authority
competent to sanction such a leave should
invariably issue orders in writing when such a
leave is refused or not sanctioned adducing the
grounds of refusal.
ii) Employees seeking leave on prolonged medical
grounds may be referred to the Medical Board
at the Regional office nearest to the residence
of the employee so that they do not get any
succour on plea of inability on health grounds.
iii) The Disciplinary Authority while examining the
representation on show-cause notice should
preferably give a personal hearing to the
employee before issue of the final order of loss
of lien on the post, thereby terminating the
service of that employee.
iv) The Disciplinary Authority should ensure that
the posting of a regular incumbent against a
vacancy to that post which has been rendered
vacant by virtue of application of provisions of
the Article 81(D), be kept pending till the
disposal of appeal or 90 days after the date of
termination whichever is later. This is to ensure
the vacancy at the place of last posting of
appellant, when the appeal has been disposed
of favourably by the Appellate Authority.
v) Consequent upon disposal of the appeal by the
Appellate Authority, if the employee does not
join his duties at the assigned place of posting
within the stipulated date without assigning
any reason thereof, the Commissioner,
Kendriya Vidyalaya Sangathan may be
informed immediately, who will be at liberty to
prevail over the order of Appellate Authority
and pass order as deemed fit.
vi) The personal file alongwith service book and
the case file of the appellant maintained at the
Regional office may invariably be provided
alongwith the comments on the points of
appeal. The Disciplinary Authority should also
specifically mention the grounds or
consideration on which the leave was refused
to the employee.
vii) Before issue of the Show-Cause Notice under
Article 81(D) to an employee who is
unauthorisedly absent, his/her appointment
order should be checked to confirm his
Appointing Authority. Accordingly, Show-Cause
Notice as well as removal order should not be
issued by an officer below in rank of his/her
Appointing Authority.=
7.2. Rule 48A of the Central Civil Services (Pension) Rules,
1972, reads thus:
<Retirement on completion of 20 years9 qualifying
service.4
(1) At any time after a Government servant has
completed twenty years9 qualifying service, he may,
by giving notice of not less than three months in
writing to the Appointing Authority, retire from
service.
Provided that this sub-rule shall not apply to a
Government servant, including scientist or technical
expert who is4
(i) on assignments under the Indian Technical
and Economic Co-operation (ITEC) Programme
of the Ministry of External Affairs and other aid
programmes.
(ii) posted abroad in foreign based offices of the
Ministries/ Departments,
(iii) on a specific contract assignment to a foreign
Government,
unless, after having been transferred to India, he
has resumed the charge of the post in India and
served for a period of not less than one year.
(2) The notice of voluntary retirement given under sub-
rule (1) shall require acceptance by the Appointing
Authority:
Provided that where the Appointing Authority does
not refuse to grant the permission for retirement
before the expiry of the period specified in the said
notice, the retirement shall become effective from the
date of expiry of the said period.
(3) Deleted.
(3-A) (a) A Government servant referred to in sub-rule
(1) may make a request in writing to the
Appointing Authority to accept notice of
voluntary retirement of less than three months
giving reasons therefor:
(b) On receipt of a request under Clause (a), the
Appointing Authority subject to the provisions
of sub-rule (2), may consider such request for
the curtailment of the period of notice of three
months on merits and if it is satisfied that the
curtailment of the period of notice will not
cause any administrative inconvenience, the
Appointing Authority may relax the requirement
of notice of three months on the condition that
the Government servant shall not apply for
commutation of a part of his pension before the
expiry of the period of notice of three months.
(4) A Government servant, who has elected to retire
under this rule and has given the necessary notice to
that effect to the Appointing Authority, shall be
precluded from withdrawing his notice except with
the specific approval of such authority:
Provided that the request for withdrawal shall be
made before the intended date of his retirement.
(5) Omitted.
(6) This rule shall not apply to a Government servant
who4
(a) retires under the Special Voluntary Retirement
Scheme relating to voluntary retirement of
surplus employees, or
(b) retires from Government service for being
absorbed permanently in an Autonomous Body
or a Public Sector Undertaking to which he is
on deputation at the time of seeking voluntary
retirement.
EXPLANATION.4
For the purpose of this rule, the expression
8Appointing Authority9 shall mean the authority
which is competent to make appointments to the
service or post from which the Government servant
seeks voluntary retirement.=
DISCUSSIONS AND ANALYSIS:
8. Before proceeding with the matter on merit with
reference to the provisions and guiding principles, it may
be necessary to have regard to the imprimatur of the
Hon9ble Supreme Court of India in the case of Sudhir
Kumar Consul Vrs. Allahabad Bank, (2011) 2 SCR 1119,
which is to the following effect:
<21. We have sympathies for the appellant but, in a
society governed by rule of law, sympathies cannot
override the Rules and Regulations. We may recall
the observations made by this Court while
considering the issue of compassionate appointment
in public service. In Life Insurance Corporation of
India Vrs. Asha Ramachhandra Ambekar, (1994) 2
SCC 718, wherein the Court observed:
8The High Courts and the Administrative
Tribunals cannot confer benediction impelled
by sympathetic consideration*** Yielding to
instinct will tend to ignore the cold logic of law. It
should be remembered that 8law is the embodiment
of all wisdom9. Justice according to law is a principle
as old as the hills. The Courts are to administer
law as they find it, however, inconvenient it
may be.9 ***=
9. Undisputed fact, which is relevant to consider the
question whether the learned Central Administrative
Tribunal, Cuttack Bench, Cuttack is justified in
affirming the order of the Appellate Authority who has
dismissed the appeal filed against the order of the
Disciplinary Authority removing the petitioner from
service, is that the petitioner instead of attending the
workshop scheduled on 6th to 8th May, 2007 at Kendriya
Vidyalaya at Paradeep Port, being deputed from Kedriya
Vidyalaya, Angul, went to her native at Balasore for her
alleged treatment and sought for extension of her leave
from time to time by furnishing evidence of treatment at
OPD, District Headquarter Hospital at Balasore. Further
factual aspect which has weight for the present purpose
is that the petitioner refused to receive the
correspondences particularly the Letter dated
17.09.2007 of the Principal of Kedriya Vidyalaya, Angul
asking her to attend District Medical Board, at Angul
and notice for personal hearing was also returned
unserved with postal remark <the person knowingly did
not receive the letter as such returned=. To countenance
such stand, the opposite party Nos.1 to 5 have filed
affidavit dated 25.01.2023, whereby the documents
enclosed as Annexure-H/3 series stands testimony that
Letter dated 17.09.2007 of the Principal, Kendriya
Vidyalaya, Angul instructed the petitioner <to appear
before the Vidyalaya Medical Board at CDMO Office,
Angul on 01.10.2007 after reporting the Principal,
Kendriya Vidyalaya, Angul= and said registered letter
sent through speed post came back with postal remark
dated 19.09.2007 as <Refused, so return to sender=. In
the said affidavit it has been asserted by enclosing
document at Annexure-I/3 that the Principal, Kendriya
Vidyalaya, Angul vide Letter dated 24.09.2007 again
directed the petitioner to appear before the Vidyalaya
Medical Board on 01.10.2007 to ascertain the
genuineness of her illness as per the Medical
Certificate(s) submitted by her. This was also not
attended to by the petitioner. Finding no other way, it
was proposed to issue notice to the petitioner
contemplating action under Article 81(D) of the
Education Code for Kendriya Vidyalayas citing
<unauthorized absence=. Even the order removing the
petitioner from service was sent by registered post came
back with postal remark on 29.01.2008 as <the person
knowingly did not receive the letter, as such returned=.
Thereafter, attempt was made to hand over the Letter
dated 09.01.2008 to the petitioner personally by
deputing official of the Vidyalaya. On 08.02.2008 as the
petitioner refused to receive said letter, the said deputed
official(s), pasted the same on the entrance door of the
residence of the petitioner and the copy of service return
depicts as follows:
<08.02.2008
As per the instruction of the Principal, Kendriya
Vidyalaya, Balasore we went to the residence of Mrs. R.R.
Mohapatra to hand over the letter to her. She read the
letter and refused to accept it. So, Sri D.N. Mukhi, Group-
D, Kendriya Vidyalaya, Angul pasted the letter at the
entrance in our presence as per the instruction.
Duryodhan Mahallik
08.02.2008
TGT (Eng.)
K.V., Balasore
Ajaya Kumar Das
08.02.2008
Laboratory Attendant, K.V.
Debendranath Mukhi
08.02.2008
Group D, K.V., Angul=
10. With the above factual background, it may be pertinent
here to extract the following facts which weighed while
passing the impugned Order dated 27.03.2019 by the
learned Central Administrative Tribunal:
<5. In the above backdrop, the Assistant Commissioner,
Kendriya Vidyalaya Sangathan, Regional Office,
Mancheswar, Bhubaneswar in the capacity of
Appointing Authority/Disciplinary Authority after
hearing the applicant in person, passed an order
dated 14/22.09.2010 (A/9), the relevant part of
which reads as follows:
8And whereas based on the available records, it is
found that nothing new has been added in the
submission made by the said Smt. Rashmi Rekha
Mohapatra in her favour. The reasonable opportunity
was given to the said Smt. Mohapatra as per rules
under Article 81(D) of Education Code, but the she
did not avail such opportunities merely sending
medical sickness certificate time to time as and
when required by her which do not have any
continuity in her treatment. The competent authority
given her reasonable opportunity to render her
sincere service in Kendriya Vidyalaya, Angul
wherein she joined there on 27.03.2007 but she
remained on leave unauthorisedly with effect from
06.05.2007 without getting her leave sanctioned as
required under Article 81(D) of Education Code. She
is interested in the service of Kendriya Vidyalaya
Sangathan with her posting in Kendriya Vidyalaya,
Balasore. The said Smt. Mohapatra in her
submission dt. 31.08.2010 failed to state the
reasons that under what circumstances she refused
to receive the official letters from the Postal
authority. Thus the submission made by the said
Smt. Mohapatra do not negate the facts in her on the
basis of available records and do not have merit in
her favour in accordance with law as codified under
Article 81(D) of Education Code for Kendriya
Vidyalayas.
Now, therefore, the submission dated 31.08.2010
made by the said Smt. Rashmi Rekha Mohapatra
does not have any merit in her favour on the basis of
available records and the undersigned being the
Appointing & Disciplinary Authority finds no scope to
reinstate the said Smt. Mohapatra in Kendriya
Vidyalaya Sangathan service as per codal provision
under Article 81(D) of Education Code or grant of
voluntary retirement as per Rule 48-A of Central
Civil Services (Pension) Rules, 1972 as the said Smt.
Mohapatra has not completed 20 years of service in
compliance with the order dated 23.04.2010 of the
Hon9ble CAT, Cuttack in O.A No.426/2008.9
6. Appeal preferred by the applicant against the above
order of the Disciplinary Authority was rejected by
the Appellate Authority vide order dated
11/13.01.2012 (A/11), the relevant part of which
reads as under:
8The undersigned being the competent Appellate
Authority has gone through the appeal and other
related documents of this case and observed as
under:
The appellant was terminated from the service for
her unauthorized absence by the competent
authority vide order dated 9.11.2008 against which
she preferred an appeal on 8.2.2008 to the Appellate
Authority. The Appellate Authority accordingly
granted her a personal hearing on 4.7.2007 and
4.8.2008, but the appellant did not attend the
personal hearing due to some medical reasons
without submitting medical certificate etc. The
appeal was considered on merit by the Appellate
Authority and it was rejected. Against the Appellate
Authority9s order, the appellant filed a court case
vide OA No.426/2008 in Hon9ble Central
Administrative Tribunal, Cuttack Bench. As per the
Court's directions, the Assistant Commissioner (now
designed as Dy. Commissioner) of Kendriya
Vidyalaya Sangathan, Bhubaneswar Region gave
her personal hearing on 31.8.2010 and decided that
there is no scope to reinstate her in services. He
request for voluntary retirement from service cannot
be considered as she has not completed 20 years of
qualifying service in Kendriya Vidyalaya Sangathan.
Now against this order she has preferred an appeal
and the same has been considered by the
undersigned as under.
While working in Kendriya Vidyalaya, Angul, the
appellant was found unauthorisedly absent from
school due to some medical reasons. She was given
ample opportunity by the competent authority for
appearing before the medical board for second
opinion but she did not obey the orders of the
competent authority for the reasons best known to
her and she was also found in the habit of not
accepting the official correspondence made by the
competent authority to her. The attitude of the
appellant is not appreciable and acceptable. It is her
duty and responsibility to accept the official
correspondence made to her so that she can give
proper reply to the authority for their consideration.
As the appellant did not receive the official
communication, the postman wrote on the envelope
that the person knowingly did not receive the letter
and as such returned. Therefore, the letters have
been sent to her through special messenger, even
then she did not accept the letters. Finally as there
was no other way out the orders were pasted on the
main entrance door of her house on 8.2.2008. This
itself clear indication that the appellant was found
adamant and heaving in a different way with
authorities of Kendriya Vidyalaya Sangathan. From
the documents I also found that the appellant is
more interested to work only in Kendriya Vidyalaya,
Balasore as it is her native place and not in any
other place of the country. Even though she got her
transfer from Kendriya Vidyalaya, Angul to
Kendriya Vidyalaya No.3 Mancheswar as per her
request but did not join there also. KVS employees
are having all India transfer liability and they are
accepted to work anywhere in the country.
Organization interest is the paramount than
family/personal issues. However, even though she
was working in Bhubaneswar Region, she was not
able to attend the school on one or another reason
due to which the students of primary classes of the
Vidyalaya suffered a lot and they have been
deprived of getting quality education from the
appellant. From the documents, it is seen that her
case was duly considered by the disciplinary
authority after giving her personal hearing on
31.08.2010 and decided not to reinstate her and she
is not eligible for Voluntary Retirement. I feel the
action initiated against the appellant by the
disciplinary Authority is just and fair as she is not
having any interest to work in Kendriya Vidyalaya
Sangathan. Teachers are expected to work sincerely
with more devotion and teaching is a noble
profession. The appellant could not give her best to
the students and her continuous absence hampered
the students9 future. Reinstating the Appellant may
pass a wrong signal to the school system. In the
interest of students and on the foregoing position, I
have decided not to intervene in the decision of the
disciplinary authority and upheld the order dated
14/22.9.2010.
Accordingly, the appeal preferred by Smt. Rashmi
Rekha Mohapatra on 01.10.2020 stands disposed
of.9 ***=
10.1. After taking into account the factual finding of both the
authorities, the learned Central Administrative Tribunal
took cognizance of provisions guiding the field and came
to following conclusion:
<11. *** The applicant has not pointed out any procedural
irregularity in these orders. Therefore, the limited
purpose on which this Tribunal had remitted the
matter back to the Disciplinary Authority for
reconsideration, in our considered opinion, has since
been served.
12. As regards her request for voluntary retirement,
since the applicant is yet to attain the requisite years
of service, i.e., 20 years of qualifying service under
the relevant Central Civil Services (Pension) Rules,
voluntary retirement from service is not permissible
and to this effect, the applicant cannot have any
grievance.
13. However, we have gone through the decisions cited
by the applicant as well as the respondents in
support of their respective stand point. The facts of
the instant case do not stand in conformity with the
cases cited by the applicant and hence
distinguishable. In this case, admittedly, while the
applicant was on the way to attend a work shop at
Kendriya Vidyalaya, Paradip Port from 6th to 8th
May, 2007 due to her sudden illness could not
attend the same and came back to Balasore, i.e., to
her residence for treatment. Respondents have
pointed out that in case of her sudden illness she
should have taken the fast aid treatment and
without doing so she returned to Balasore and sent
application stating that she has been suffering from
hematite Arthritis and severe chronic disease and
was under treatment at Balasore. At the same time,
she also sought for a posting to Kendriya Vidyalaya,
Balasore or permit her to make an application for
voluntary retirement. It is also not denied by the
applicant that various correspondences made to her
had been returned unserved with the remarks that
she declined to accept the same. In view of the
position, we do not find any fault with the orders
passed by the Disciplinary Authority and the
Appellate Authority.=
10.2. From the above it is comprehended that the Central
Administrative Tribunal, the Appellate Authority as also
the Disciplinary Authority unequivocally came to find
that though, stationed at Balasore, the petitioner sent
application for grant of leave on the ground of treatment
at Outdoor Patients Department, District Headquarter
Hospital, Balasore to Kendriya Vidyalaya at Angul, yet
she sought for posting at Kendriya Vidyalaya at Balasore
or permit her to make application for voluntary
retirement.
10.3. Relying on Article 81(D) of the Education Code for
Kendriya Vidyalayas, the case of the petitioner has been
treated as <voluntary abandonment of service= and with
reference to Rule 48A of the Central Civil Services
(Pension) Rules, 1972, it is held that the petitioner,
having not completed 20 years of service, her case for
voluntary retirement could not be considered.
10.4. The concurrent views expressed by three fora are
essentially facts based on material available on record.
The counsel for the petitioner failed to demonstrate that
the essential fact which led to negative the contention
and reject the claim of the petitioner is contrary to
material on record. The Central Administrative Tribunal
is correct in saying no procedural irregularity is
perceived in the orders of the Disciplinary Authority and
the Appellate Authority.
11. Article 81(D) of the Code which deals with <voluntary
abandonment of service= clearly speaks that lien on post
is lost if an employee remains absent without sanction of
leave. It is further laid down that such lien is subject to
condition that the employee is required to return within
fifteen calendar days of the commencement of the
absence or the expiry of leave originally granted or
subsequently extended. None of these circumstances
could be evinced by the counsel for the petitioner in the
instant case. Rather it is the case of the petitioner that
she went to Balasore for treatment at Outdoor Patient
Department of District Headquarter Hospital instead of
attending workshop at Kendriya Vidyalaya at Paradeep
Port. Significantly, the petitioner refused to receive the
vital and relevant communications from the Principal,
Kendriya Vidyalaya, Angul. Whereas postal remark
indicated refusal to receive the communication(s), the
attempt of the messenger from Kendriya Vidyalaya,
Angul accompanied by employees of Kendriya Vidyalaya,
Balasore to serve such communication physically went
in vain as the petitioner denied to receive.
11.1. With regard to abandonment of service, the following
observation in The Regional Manager, Central Bank of
India Vrs. Vijay Krishna Neema, (2009) 5 SCR 645 may
be relevant:
<An employee may, in certain situations, abandon or
deemed to have abandoned his job. What constitutes
abandonment may be a matter of a statutory provision or
agreement between the employer and the Union.
Although absence without leave for a long time may
constitute a grave misconduct on the part of the
employee concerned, in a case of this nature, in
view of clause 16 of the Shastri Award, an employee
can be treated to have ceased from employment. In
Viveka Nand Sethi Vrs. Chairman, J&K Bank Ltd., (2005)
5 SCC 337, this Court, inter alia, relying upon the decision
of this Court in Punjab & Sind Bank Vrs. Sakattar Singh,
(2001) 1 SCC 214 and Syndicate Bank Vrs. General
Secretary, Syndicate Bank Staff Association, (2000) 5
SCC 65, held as under:
815. The bipartite settlement is clear and unambiguous. It
should be given a literal meaning. A bare perusal of
the said settlement would show that on receipt of a
notice contemplated thereunder, the workman must
either:
(1) report for duties within thirty days;
(2) give his explanation for his absence satisfying
the management that he has not taken any
employment or avocation; and
(3) show that he has no intention of not joining the
duties.
It is, thus, only when the workman concerned does
not join his duties within thirty days or fails to file a
satisfactory explanation, as referred to hereinbefore,
that the legal fiction shall come into force. In the
instant case except for asking for grant of medical
leave, he did not submit any explanation for his
absence satisfying the management that he has not
taken up any other employment or avocation and
that he had no intention of not joining his duties.
***
20. It may be true that in a case of this nature, the
principles of natural justice were required to be
complied with but the same would not mean
that a full-fledged departmental proceeding
was required to be initiated. A limited enquiry as
to whether the employee concerned had sufficient
explanation for not reporting to duties after the
period of leave had expired or failure on his part on
being asked so to do, in our considered view,
amounts to sufficient compliance with the
requirements of the principles of natural justice.9
The same view was reiterated by this Court in New India
Assurance Co. Ltd. Vrs. Vipin Behari Lal Srivastava,
(2008) 3 SCC 446.=
11.2. Analysing Article 81(D)(1)(b) of the Code, it deciphered
that for determining <voluntary abandonment of service=,
the Appointing Authority is led to be satisfied about the
absence of the employee that he/she could not be in a
position to return on the expiry of the leave which was
for reasons beyond control. In other words, unless the
Appointing Authority is satisfied, the employee is treated
to have voluntarily abandoned service.
11.3. Presence of the term <deemed= in Article 81(D)(1) has
much relevance. It is made clear in said article that in
absence of report to the duty within fifteen calendar days
and satisfactorily explaining the reasons for such
absence, the employee <shall be deemed to have
voluntarily abandoned his service=.
11.4. In Bhuwalka Steel Industries Ltd. Vrs. Union of India,
(2017) 5 SCC 598 reference of St. Aubyn Vrs. Attorney
General, 1952 AC 15 = (1951 2 All ER 473 (HL) was made
and the relevant portion from said Judgment is quoted
hereunder:
<The word 8deemed9 is used a great deal in modern
legislation. Sometimes it is used to impose for the
purposes of a statute an artificial construction of a word
or phrase that would not otherwise prevail. Sometimes it
is used to put beyond doubt a particular construction that
might otherwise be uncertain. Sometimes it is used to give
a comprehensive description that includes what is
obvious, what is uncertain and what is, in the ordinary
sense, impossible.=
The word 8Deemed9 as per Worcester Dictionary, is:
<The word 8deemed9 is used in various senses. Sometimes
it means 8generally regarded9. At other time it signifies
<taken conclusively to be=. Its various meanings are to
been to be hold in belief, estimation, or opinion; to judge;
adjudge; decide; consider to be; to have or to be of an
opinion; to esteem; to suppose; to think, decide or believe
on consideration; to account; to regard; to adjudge or
decide; to conclude upon consideration.=
In Words & Phrases, Permanent Edition, Vol. 11A, page
181, the word 8deemed9 has been described to mean
8regarded as being9; it is equivalent to 8shall be taken to
be9. In Rishabh Agro Industries Ltd Vrs. P.N.B. Capital
Services Ltd, (2000) 5 SCC 515, in the context of Section
441 of the Companies Act, 1956, the following meaning
has been culled out:
<The word 8deemed9 as used in Section 441 of the Act
means <supposed9, 8considered9, 8construed9, 8thought9,
8taken to be9 or 8presumed9.=
In Ram Prakash Khanna Vrs. S.A.F. Abbas, AIR 1972 SC
2350 = (1972) 1 SCC 784, the Supreme Court of India,
while dealing with Rule 3(3)(b) of the Indian
Administrative Service (Regulation of Seniority) Rules,
1954, held as follows:
<The use of word 8deemed9 in the rule indicates that the
Government has the power to make a retrospective
declaration because, it is only after promotion that there is
any occasion to consider whether the period of officiation
prior to promotion will be counted for purpose of
seniority.=
In State of Karnataka Vrs. Shri Ranganatha Reddy, AIR
1978 SC 215, it has been observed as follows:
<The use of word <deemed= does not invariably and
necessarily imply an introduction of a legal fixation but it
has to be read and understood in the context of the whole
statute.=
In Consolidated Coffee Ltd Vrs. Coffee Board, AIR 1980
SC 1468, the observation of the Supreme Court runs as
follows:
<A deemed provision might be made to include what is
obvious or what is uncertain or to impose for the purpose
of a statute an artificial construction of a word or phrase
that would not otherwise prevail.=
When a deeming provision is in operation, the Court is
to keep in mind the principle of interpretation of a
deeming clause. Whenever a deeming clause occurs in a
statute and the Court is called upon to interpret the
same, the Court has to first ascertain the purpose for
which such deeming clause has been incorporated.
Normally a deeming clause is created by way of a legal
fiction. Therefore, the Court is to first ascertain the
purpose behind the legal fiction. After ascertaining the
purpose, the Court must assume those consequences,
which are incidental and inevitable corollaries for giving
effect to such legal fiction. See, Penguin Trading &
Agencies Ltd. Vrs. State of Orissa, 2007 (Supp.-I) OLR
738.
In Ashok Leyland Ltd. Vrs. State of TN, (2004) 134 STC
473 (SC) it is propounded that when a legal fiction is
created it must be given its full effect. Reference may be
had also to East End Dwelling Co. Ltd. Vrs. Finsbury
Borough Council, (1951) 2 All ER 587; State of Bombay
Vrs. Pandurang Vinayak, AIR 1953 SC 244;
Commissioner of Income Tax Vrs. S. Teja Singh, AIR 1959
SC 352; M. Venugopal Vrs. Divisional Manager, Life
Insurance Corporation of India, Machilipatnam, A.P.,
(1994) 2 SCC 323; Indian Oil Corporation Limited Vrs.
Chief Inspector of Factories, (1998) 5 SCC 738, Voltas
Limited, Bombay Vrs. Union of India, (1995) Supp. 2 SCC
498, Harish Tandon Vrs. Additional District Magistrate,
Allahabad, U.P., (1995) 1 SCC 537; G. Viswanathan Vrs.
Hon9ble Speaker, Tamil Nadu Legislative Assembly,
Madras, (1996) 2 SCC 353; Bhavnagar University Vrs
Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111 = (2002) 4
Suppl. SCR 517. Conspectus of decisions referred to
would suggest that if one is bidden to treat an imaginary
state of affairs as real, one must surely, unless
prohibited from doing so, also imagine as real the
consequences and incidents which, if the putative state
of affairs had in fact existed, must inevitably have flowed
from or accompanied it. The statute says that one must
imagine a certain state of affairs; it does not say that,
having done so, one must cause or permit one9s
imagination to boggle when it comes to the inevitable
corollaries of that state of affairs.
11.5. When the language used in the section/provision is
plain and unambiguous, no words shall be added,
altered or modified unless it is plainly necessary to do so
to prevent a provision from being unintelligible, absurd,
unreasonable, unworkable or totally irreconcilable with
the rest of the statute.
11.6. Thus understood the purport and perceptible meaning of
<deemed=, the provision contained in Article 81(D) to the
effect <The employee not reporting for duty within fifteen
calendar days and satisfactorily explaining the reasons
for such absence as aforesaid, shall be deemed to have
voluntarily abandoned his service and would, thereby,
provisionally lose lien on his post= is created for a limited
purpose, namely, to make said expression a self-
contained code which not only requires report to duty
<within fifteen calendar days= and explain the reasons
for absence from duty <satisfactorily=.
11.7. Satisfaction of the authority can be interfered with, if the
satisfaction recorded is demonstratively perverse based
on no evidence, misreading of evidence or which a
reasonable man could not form or that the person
concerned was not given due opportunity resulting in
prejudice. To that extent, objectivity is in-built in the
subjective satisfaction of the authority. Vide, State of
NCT of Delhi Vrs. Sanjeev @ Bittoo, (2005) 3 SCR 151; and
Gazi Sududdin Vrs. State of Maharashtra, (2003) 7 SCC
330.
11.8. Perusal of record shows that the manner in which the
petitioner conducted herself was not satisfactory. Going
through the orders impugned would go to manifest that,
though the petitioner refused to receive the
correspondences sent from the Kendriya Vidyalaya,
Angul to her residential address at Balasore, the learned
Central Administrative Tribunal offered her to place her
stance before the Disciplinary Authority vide Order
dated 23.04.2010. Said Authority appreciated the
evidence on record. Cognizance has been taken that the
petitioner having refused to receive communication,
thereby declined to appear for examination before the
District Medical Board. Rather the Authorities were one
with the fact that she represented for being posted at her
native place at Balasore only.
11.9. Glance at Memorandum dated 06.11.2007 whereby the
petitioner was called upon to furnish written reply
reflects as follows:
<Smt. Rashmi Rekha Mohapatra, PRT, K.V. Angul is
hereby informed that she remained absent for a period of
fifteen days or more from 06.05.2007 to till date without
sanctioned leave. Smt. Rashmi Rekha Mohapatra, PRT
neither reported for duty within the aforesaid 15 calendar
days nor satisfactorily explained the reasons for her
absence. In terms of sub-clause (1) of clause (D) of Article
81 of the Education Code for Kendriya Vidyalayas, she is
deemed to have voluntarily abandoned her service and
thereby provisionally lost lien on her post.=
11.10. Categorically it has been mentioned by the
Disciplinary Authority in Order dated 14.09.2010 upon
reconsideration of matter on remand vide Order dated
23.04.2008 of the Central Administrative Tribunal in
O.A. No.426/2008 that,
<The said Smt. Mohapatra continued to remain on leave
unauthorisedly merely sending leave applications with
medical sickness certificates from time to time only to
alive her service in KVS and she never enquired from the
leave sanctioning authority about the status of her leave
case on medical ground. She was directed by the
Principal, Kendriya Vidyalaya, Angul and leave
sanctioning authority vide Letter dated 17.09.2007 and
Letter dated 24.09.2007 to appear before the Vidyalaya
level medical board at CDMO, Angul on 01.10.2007 for
second medical opinion and to ascertain the genuineness
of her medical ground but she 8refused9 to receive said
letter as reported by the Principal, Kendriya Vidyalaya,
Angul which tantamounts to misconduct.=
11.11. In Prem Juneja Vrs. Union of India, 2002 LE (Del)
729 = (2003) 1 AD (Del) 57, the Delhi High Court put
forth the analysis of Article 81(D) of the Code in the
following paragraph:
<Article 81(D) clearly makes a provision for providing an
opportunity to an employee to show cause against the
provisional view of the concerned authority that the
employee has lost his or her lien on the post on the
ground of his unauthorized absence from duty. Such an
employee, who remained absent, can render his
explanation. In case the Disciplinary Authority rejects the
explanation and passes an order confirming loss of lien
on the post held by him or her and removing him from
service, he or she can file an appeal before the Appellate
Authority. The Supreme Court in Aligarh Muslim
University and others Vrs. Mansoor Ali Khan, 2000 (6)
SCALE 125 = AIR 2000 SC 2783 = (2000) 2 Suppl. SCR
684, while dealing with Rule 5(8)(1) of the Aligarh Muslim
University Revised Leave Rules, 1969, which rule is
identical to Article 81(D) of the Education Code, held as
follows:
811. It will be seen that Rule 5(8)(1) applies to an
employee who absents himself from duty without
having previously obtained leave or where he has
failed to return to his duties on the expiry of leave
without having previously obtained further leave.
Then Rules 5(8)(1) refers to the manner in which the
employee is to be given an opportunity. If the
Appointing Authority regards the explanation as not
satisfactory, the employee concerned shall be
deemed to have vacated his post without notice from
the date of absence without leave in the context of
Rule 10 of the 1972 rules, which deems vacation of
post if the absence was 5 years, it must follow that
the above Rule 5(8)(i) applies to absence for a period
of less than 5 years.
12. Rule 5(8)(ii) deals with a different situation. It relates
to a case where such an officer is permitted to rejoin
duty. It says that if he is so permitted, he will be
entitled to no leave allowance or salary for the
period of such absence and such period shall be
debited against his leave account as leave without
pay. The rule says that these consequences will not,
however, follow if his leave is extended by the
authority empowered to grant leave. Then in its
latter part, Rule 5(8)(ii) refers to another situation
enabling disciplinary action to be taken treating
unauthorised absence as misconduct. If a person
has been absent without leave being sanctioned, he
could be proceeded against for misconduct.=
11.12. As is explicit from Note enumerating
supplementary instructions appended to Article 81(D)
that when employee seeks leave on prolonged medical
ground, the authority can refer the matter to Medical
Board.
11.13. Further fact as recorded by the authorities reveals
that <even though she got her transfer from Kendriya
Vidyalaya, Angul to Kendriya Vidyalaya, No.3
Mancheswar as per her request= she did not join there. It
is seemly to appreciate the observation of the authorities
that <Organisation interest is the paramount than
family/personal issues. However, even though she was
working in Bhubaneswar Region, she was not able to
attend the school on one or another reason due to which
the students of primary classes of the Vidyalaya suffered
a lot and they have been deprived of getting quality
education=. Remaining absent unauthorizedly for a long
period with inadequate reason and in not responding to
the communications from the employer during the
period of such unauthorized absence, would tantamount
to conceive that she had not only shown indiscipline but
also made an attempt to get away with it. Such a
conduct is impermissible and exceptionable.
11.14. To buttress, the following view of the Hon9ble
Supreme Court expressed in State of Punjab Vrs. Dr. P.L.
Singla (2008) 8 SCC 469 may gainfully be referred to:
<Unauthorised absence (or overstaying leave), is an
act of indiscipline. Whenever there is an unauthorized
absence by an employee, two courses are open to the
employer. The first is to condone the unauthorized
absence by accepting the explanation and sanctioning
leave for the period of the unauthorized absence in which
event the misconduct stood condoned. The second is to
treat the unauthorized absence as a misconduct, hold an
enquiry and impose a punishment for the misconduct.=
Again, while dealing with the concept of punishment the
Court ruled as follows:
<Where the employee who is unauthorisedly absent does
not report back to duty and offer any satisfactory
explanation, or where the explanation offered by the
employee is not satisfactory, the employer will take
recourse to disciplinary action in regard to the
unauthorized absence. Such disciplinary proceedings may
lead to imposition of punishment ranging from a major
penalty like dismissal or removal from service to a minor
penalty like withholding of increments without cumulative
effect. The extent of penalty will depend upon the nature
of service, the position held by the employee, the period of
absence and the cause/explanation for the absence.=
11.15. The scope of judicial review vis-à-vis satisfaction of
the authority concerned in taking decision in service
matters has been elaborated in Amarendra Kumar
Pandey Vrs. Union of India, (2022) 11 SCR 223, which is
extracted hereunder:
<28. Where an Act or the statutory rules framed
thereunder left an action dependent upon the
opinion of the authority concerned, by some such
expression as 8is satisfied9 or 8is of the opinion9 or 8if
it has reason to believe9 or 8if it considered
necessary9, the opinion of the authority is conclusive,
(a) if the procedure prescribed by the Act or rules
for formation of the opinion was duly followed,
(b) if the authority acted bona fide,
(c) if the authority itself formed the opinion and
did not borrow the opinion of somebody else
and
(d) if the authority did not proceed on a
fundamental misconception of the law and the
matter in regard to which the opinion had to be
formed.
29. The action based on the subjective opinion or
satisfaction, in our opinion, can judicially be
reviewed first to find out the existence of the facts or
circumstances on the basis of which the authority is
alleged to have formed the opinion. It is true that
ordinarily the court should not inquire into the
correctness or otherwise of the facts found
except in a case where it is alleged that the
facts which have been found existing were not
supported by any evidence at all or that the
finding in regard to circumstances or material
is so perverse that no reasonable man would
say that the facts and circumstances exist. The
courts will not readily defer to the
conclusiveness of the authority's opinion as to
the existence of matter of law or fact upon
which the validity of the exercise of the power
is predicated.
30. The doctrine of reasonableness thus may be
invoked. Where there are no reasonable grounds for
the formation of the authority9s opinion, judicial
review in such a case is permissible. [See Director of
Public Prosecutions Vrs. Head, (1959) AC 83 (Lord
Denning)].
31. When we say that where the circumstances or
material or state of affairs does not at all exist to
form an opinion and the action based on such
opinion can be quashed by the courts, we mean that
in effect there is no evidence whatsoever to form or
support the opinion. The distinction between
insufficiency or inadequacy of evidence and no
evidence must of course be borne in mind. A
finding based on no evidence as opposed to a
finding which is merely against the weight of
the evidence is an abuse of the power which
courts naturally are loath to tolerate. Whether
or not there is evidence to support a particular
decision has always been considered as a
question of law. [See Reg. v. Governor of Brixton
Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p.
841].
32. It is in such a case that it is said that the authority
would be deemed to have not applied its mind or it
did not honestly form its opinion. The same
conclusion is drawn when opinion is based on
irrelevant matter. [See Rasbihari Vrs. State of
Orissa, AIR 1969 SC 1081].
33. In the case of Rohtas Industries Ltd. Vrs. S.D.
Agarwal and another, AIR 1969 SC 707, it was held
that the existence of circumstances is a condition
precedent to form an opinion by the Government. The
same view was earlier expressed in the case of
Barium Chemicals Ltd. and another Vrs. Company
Law Board and others, AIR 1967 SC 295.
34. Secondly, the court can inquire whether the facts
and circumstances so found to exist have a
reasonable nexus with the purpose for which the
power is to be exercised. In other words, if an
inference from facts does not logically accord with
and flow from them, the Courts can interfere treating
them as an error of law. [See Bean Vrs. Doncaster
Amalgamated Collieries, (1944) 2 All ER 279 at p.
284]. Thus, this Court can see whether on the basis
of the facts and circumstances found, any
reasonable man can say that an opinion as is
formed can be formed by a reasonable man. That
would be a question of law to be determined by the
Court. [See Farmer v. Cotton9s Trustees, 1915 AC
922]. Their Lordships observed:
<*** in my humble judgment where all the material
facts are fully found, and the only question is
whether the facts are such as to bring the case
within the provisions properly construed of some
statutory enactment, the question is one of law
only.=
[See also Muthu Gounder Vrs. Government of
Madras, (1969) 82 Mad LW 1].
35. Thirdly, this Court can interfere if the constitutional
or statutory term essential for the exercise of the
power has either been misapplied or misinterpreted.
The Courts have always equated the jurisdictional
review with the review for error of law and have
shown their readiness to quash an order if the
meaning of the constitutional or statutory term has
been misconstrued or misapplied. [See Iveagh (Earl
of) Vrs. Minister of Housing and Local Govt., (1962) 2
QB 147; Iveagh (Earl of) Vrs. Minister of Housing
and Local Govt. (1964) 1 AB 395].
36. Fourthly, it is permissible to interfere in a case
where the power is exercised for improper purpose.
If a power granted for one purpose is exercised for a
different purpose, then it will be deemed that the
power has not been validly exercised. If the power in
this case is found to have not been exercised
genuinely for the purpose of taking immediate action
but has been used only to avoid embarrassment or
wreck personal vengeance, then the power will be
deemed to have been exercised improperly. [See
Natesa Asari Vrs. State of Madras, AIR 1954 Mad
481].
37. Fifthly, the grounds which are relevant for the
purpose for which the power can be exercised have
not been considered or grounds which are not
relevant and yet are considered and an order is
based on such grounds, then the order can be
attacked as invalid and illegal. In this connection,
reference may be made to Ram Manohar Vrs. State
of Bihar, AIR 1966 SC 740; Dwarka Das Vrs. State
of J. and K., AIR 1957 SC 164 at p. 168 and Motilall
Vrs. State of Bihar, AIR 1968 SC 1509. On the same
principle, the administrative action will be
invalidated if it can be established that the authority
was satisfied on the wrong question: [See (1967) 1
AC 13].=
11.16. Remaining absent unauthorisedly and refusing to
receive official communications of the Principal,
Kendriya Vidyalaya, Angul, thereby defying to appear
before the Medical Board as instructed under Article
81(D) of the Code, and placing the career of the students
at stake, the petitioner, a primary teacher, has shown
gross misconduct which leads to set an example of
indiscipline in the Organisation. This apart,
uncontroverted fact remains that the petitioner was
claiming to be interested to work at her native place, i.e.,
Kendriya Vidyalaya, Balasore, rather than at place of
transfer from Kendriya Vidyalaya, Angul or Kendriya
Vidyalaya No.3, Mancheswar (Bhubaneswar). It is the
statement of the Disciplinary Authority-Appointing
Authority that for want of vacancy of primary teacher in
Kendriya Vidyalaya, Balasore, her <request for her
transfer/posting was not considered by Kendriya
Vidyalaya Sangathan=. Pertinent to mention that the
authorities have disputed and denied that she was not
in continuous service since her joining on 25.10.1983. It
is asserted by the opposite party Nos.1 to 5 that the
petitioner remained absent for about 6 years from her
duty.
11.17. Therefore, the decision of the authorities not to
reinstate the petitioner is well justified and rational. The
decision to remove the petitioner from service is in
conformity with the procedure laid down in Article 81(D)
of the Code.
12. The other aspect which was thrashed by the petitioner
that instead of removing her from service, her
representation for voluntary retirement ought to have
been considered in terms of Rule 48A of the Central Civil
Services (Pension) Rules, 1972. The authorities have
considered such an option of the petitioner and
ascertained that though she joined Kendriya Vidyalaya
Sangathan on 25.10.1983, she remained absent from
her duties for around 6 years and her net qualifying
service has been calculated and found to be 18 years 17
days as against 20 years of service, which is condition
precedent for deciding voluntary retirement under Rule
48A of the Central Civil Services (Pension) Rules. By way
of rejoinder affidavit dated 18.03.2021, the petitioner
except saying that <the petitioner joined in the service on
25.10.1983 and she was serving till 07.05.2007= and
<during the period of 24 years it is very much non-
believable that the petitioner has not performed the
qualifying period of service to avail the voluntary
retirement benefit=, nothing is stated about
unauthorised absence for six years as determined by the
authorities while computing the period as contemplated
under Rule 48A of the Central Civil Services (Pension)
Rules. Per contra, the opposite party Nos.1 to 5 have
affirmatively stated by way of additional affidavit dated
25.01.2023 that <she has been absenting from her
duties for near about six years, i.e., 09.10.2001 to
27.03.2007 has been treated as 8no work no pay9 and her
net qualifying service in Kendriya Vidyalaya Sangathan
is 18 years 17 days only against 20 years which is
condition for voluntary retirement=. This Court is afraid
to intermeddle in such computation in view of interdict
that factual aspect cannot be gone into by this Court in
writ jurisdiction particularly so when the same is
concurrent finding not only of the Disciplinary Authority,
but also the Appellate Authority and the Central
Administrative Tribunal. Since the petitioner has no
qualifying service of 20 years for consideration of
voluntary retirement as laid in Rule 48A of ibid., there
was no scope left for the authorities but to decide not to
reinstate her in service in terms of Article 81(D) of the
Code.
12.1. The principle as enunciated in State of Odisha Vrs.
Manju Naik, (2019) 14 SCR 473 = 2020 (I) ILR-CUT 225
(SC) regarding qualifying service with respect to
entitlement for pension is as follows:
<20. An employee becomes entitled to pension by
stint of his long service for the employer and,
therefore, it should be seen as a reward for
toiling hard and long for the employer. The
Pension Rules provide for a qualifying service of 10
years for such entitlement. When the question arises
as to how certain provisions of the Pension Rules are
to be understood, it would be appropriate to read the
provision in its context which would mean reading
the statute as a whole. In other words, a
particular provision of the statute should be
construed with reference to other provisions of
the same statute so as to construe the
enactment as a whole. It would also be necessary
to avoid an interpretation which will involve conflict
with two provisions of the same statute and effort
should be made for harmonious construction. In
other words, the provision of a Rule cannot be used
to defeat another Rule unless it is impossible to
effect reconciliation between them. Pension as
already stated is earned by stint of continuity
and longevity of service and minimum
qualifying service should therefore be
understood as the requirement for invalid
pension as well. The Pension Rules can be
harmoniously construed in this manner and in that
event, there shall be no clash between different
provisions in the said Rules.
25. *** The different provisions of the Pension Rules
cannot be read in isolation and must be construed
harmoniously and the requirement of qualifying
service cannot be said to be irrelevant for claiming
different service benefits under the same Rules.
Here the employee did not satisfy the requirement of
qualifying service and therefore the invalid pension
could not have been ordered for him, under Rule 39
of the Pension Rules.=
12.2. Taking cue from the above dicta, it is, thus seen that as
against requirement of completion of twenty years9
qualifying service in order to consider the case for
voluntary retirement subject to acceptance by the
Appointing Authority in conformity with provisions
contained in Rule 48A of the Central Civil Services
(Pension) Rules, 1972, the petitioner was found by the
competent authority to have completed 18 years 17
days. Therefore, she was not considered as qualified for
availing benefit of voluntary retirement.
13. Having considered the grounds taken in the writ
petition, inter alia it has been alleged by the petitioner
that the medical fitness certificate submitted along with
joining report to resume her duties should have been
considered by the authority concerned. As against this
the authorities took into account the fact that the
petitioner refused to receive the communication from the
Principal, Angul instructing her to appear before the
Medical Board as per supplementary instructions vide
Note appended to Article 81 of the Code for ascertaining
truth or otherwise of her claim of serious illness leading
to remain absent for prolonged period in contrast to
requirement of report to duty within 15 calendar days
envisaged under clause (D)(1) of said Article for she had
been furnishing Outdoor Patients Tickets.
13.1. Article 81(D)(13) of the Education Code for Kendriya
Vidyalayas make the procedure prescribed in the Central
Civil Services (Classification, Control and Appeal) Rules,
1965 applicable to the employees of the Kendriya
Vidyalayas to the extent not inconsistent with Article 81
of the said Code. Rule 19 of the Central Civil Services
(Leave) Rules, 1972, clearly lays down that <the
authority competent to grant leave may, at its discretion,
secure a second medical opinion by requesting a
Government Medical Officer not below the rank of a Civil
Surgeon or Staff Surgeon, to have the applicant
medically examined on the earliest possible date=.
Further, the consequences and procedure to be followed
in respect of an employee who is absent from duty
without any authority has been brought out under
Fundamental Rule 17(1) and Fundamental Rule 17-A.
Fundamental Rule 17-A(iii) spells out that <without
prejudice to the provisions of Rule 27 of the Central Civil
Services (Pension) Rules, 1972, <a period of an
unauthorized absence=, <in the case of an individual
employee, remaining absent unauthorisedly or deserting
the post=, <shall be deemed to cause an interruption or
break in the service of the employee, unless otherwise
decided by the competent authority for the purpose of
leave travel concession, quasi-permanency and eligibility
for appearing in department examinations, for which a
minimum period of continuous service is required=.
13.2. Case to the point has been discussed in Usha Bisht Vrs.
Union of India, 2019 SCC OnLine Del 1993, excerpt from
the Judgment is quoted hereunder:
<6. Tribunal has held that validity of Article 81(d) of the
Code was upheld by the Chandigarh Bench of the
Tribunal as also by the Delhi High Court in Prem
Juneja9s case [Prem Juneja Vrs. Union of India, 2002
LE (Del) 729 = (2003) 1 AD (Del) 57] and this
question was not open to challenge. Petitioner was
not at all interested in joining the school or pursuing
the studies of the students or to look after the
interest of the Institution as she was more keen on
taking leave on one pretext or the other without even
bothering to comply with the directions given to her
from time to time to join her duties. She even did not
appear for her medical examination before the
Regional Medical Board at Jammu. After her request
for grant of leave was declined she had made a
request for transfer and had even visited Delhi on
23rd July, 2001 to meet Dy. Commissioner which
shows that she was not sick. Petitioner could have
appeared before the Regional Medical Board at
Jammu. Full opportunity was given to the Petitioner
at every stage. Though, there was delay of one and
a half years in filing the appeal even then same was
considered on merits and the Petitioner was only
granted personal hearing by the Appellate Authority.
Circular dated 24th January, 2002 relied upon by
the Petitioner contend that Medical Board should
have been ordered at the nearest place where
Petitioner had fallen sick, was of no help to her as
she was removed from service much prior to the
issuance of this circular.
7. In factual matrix of this case, we are not inclined to
interfere with the order passed by the Tribunal. It is
apparent that Petitioner was not interested in the
welfare of the students. She was more interested in
taking leave on one or the other pretext. Between
July, 1998 to April, 2001 she remained on leave for
about 295 days. She again absented herself with
effect from 25th June, 2001 till she was removed
from service vide order dated 14th September, 2001.
We are of the view that Tribunal rightly observed
that the Petitioner was not at all interested in
pursuing her duties as Teacher as she remained
absent from the job most of the time and this action
was against the interest of Respondent No. 2.
Petitioner did not join her duties at Amritsar nor
appeared herself before the Regional Medical Board
at Jammu as directed. From the order of the Tribunal
it appears that she had visited Delhi in order to meet
the Dy. Commissioner. If that is so, she could have
very well visited Jammu to appear before Medical
Board. We are also of the view that Tribunal rightly
observed that the circular dated 24th January, 2002
was of no help to the Petitioner as the service of the
Petitioner had been terminated much prior to
issuance of this circular.
8. In Prem Juneja Vrs. Union of India, 2002 LE (Del)
729 = (2003) 1 AD (Del) 57, this Court has held that
Article 81(D) of the Code is not violative of
Articles 14 & 16 of Constitution. It has further been
held that Article 311 of the Constitution was not
applicable to employees of Kendriya Vidyalaya
Sangathan.=
13.3. In the similar line is the present case. The petitioner has
been remaining absent unauthorisedly and did not even
choose to join her place of transfer. On different spells
she was found absent for 6 years. In addition to this, she
has refused to receive the official communication
instructing her to appear before the Medical Board.
13.4. Following observation of Delhi High Court in Prem
Juneja Vrs. Union of India, (2003) 1 AD (Del) 57 is
noticeable:
<A reading of the aforesaid Article 81(D) leaves no manner
of doubt that it does not suffer from any of the vices on
the basis of which it has been attacked by the learned
counsel for the petitioner. We are not impressed by the
submission of the learned counsel for the petitioner that
the aforesaid Article 81(D) of the Education Code is
violative of the equality clause. There is nothing in Article
81(D) of the Education Code which makes it unjust, unfair
and unreasonable. It is meant to deal with an
unwarranted situation of absentism. Absentism is bane of
public service. The erring employees have been taking
advantage of the procedure and mocking at the system.
Unauthorised absentism in offices is rampant. There are
instances galore where the employees remained absent
for several years and yet were able to successfully
challenge the orders of their terminations. This had given
undue advantage to the erring employees. They not only
were able to get the orders of termination quashed or set
aside, but they were also reinstated with full back wages.
This situation cannot be allowed to prevail. The
indiscipline must be curbed in order to infuse efficiency
and discipline in the services. It was possibly in this view
of the matter that Article 81(D) of the Education Code was
framed.=
13.5. Thus, in the circumstances, no infirmity in the
impugned Order of the Central Administrative Tribunal
in affirming the decision of the Appellate Authority is
found.
14. This Court, in the aforesaid emerging factual matrix,
need not go into the details of evidence to upset the
settled factual position as that is not required while
sitting in this jurisdiction under Article 226/227 of the
Constitution of India.
14.1. The Hon9ble Supreme Court of India stated in Orissa
Administrative Tribunal Bar Association Vrs. Union of
India, (2023) 6 SCR 731 as follows:
<The effect of Section 28 of the Administrative Tribunals
Act, therefore, was that appeals from the OAT lay directly
to the Supreme Court under Article 136 of the
Constitution. However, this changed with the decision of
this Court in L. Chandra Kumar Vrs. Union of India (1997)
3 SCC 261. In its decision in that case, this Court inter
alia ruled that:
a. Clause 2(d) of Article 323-A and clause 3(d) of Article
323-B were unconstitutional to the extent that they
excluded the jurisdiction of the High Courts under
Articles 226 and 227 and of the Supreme Court
under Article 32 of the Constitution;
b. Section 28 of the Administrative Tribunals Act was
unconstitutional as were 8exclusion of jurisdiction9
clauses in all other legislation enacted under Articles
323-A and 323- B;
c. The jurisdiction conferred upon the High Courts
under Articles 226 and 227 and upon the Supreme
Court under Article 32 of the Constitution form a part
of the basic structure of the Constitution; and d.
Other courts and Tribunals may perform a
supplemental role in discharging the powers
conferred by Articles 226/227 and 32 of the
Constitution.
As a consequence of this decision, challenges under
Article 226 of the Constitution to the decisions rendered
by the SATs lay to Division Benches of the respective High
Courts within whose jurisdiction the SATs operated. The
Supreme Court9s jurisdiction could be invoked under
Article 136 against the decisions of the High Courts.=
14.2. Thus, in exercise of power under Articles 226 and 227 of
the Constitution of India, this Court is not required to
re-examine the evidence to find out as to whether the
conclusion arrived at by the Disciplinary Authority or by
the Appellate Authority is right or wrong. It is only
required to examine as to whether the correct procedure
has been followed and the principles of natural justice
have been applied.
14.3. In Union of India Vrs. P. Gunasekaran, AIR 2015 SC 545,
the Hon9ble Supreme Court of India propounded the
following guidelines:
<The High Court, in exercise of its powers under Article
226/227 of the Constitution of India, shall not venture
into re-appreciation of the evidence. The High Court can
only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure
prescribed in that behalf;
c. there is violation of the principles of natural justice in
conducting the proceedings;
d. the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be
influenced by irrelevant or extraneous
considerations;
f. the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
Under Article 226/227 of the Constitution of India,
the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in
case the same has been conducted in
accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on
which findings can be based.
(vi). correct the error of fact however grave it may
appear to be;
(vii). go into the proportionality of punishment
unless it shocks its conscience.=
14.4. In the case of State of Andhra Pradesh Vrs. S. Sree Rama
Rao, AIR 1963 SC 1723, the Hon9ble Supreme Court
made the following observations:
<The High Court is not constituted in a proceeding under
Article 226 of the Constitution a Court of appeal over the
decision of the authorities holding a departmental enquiry
against a public servant: it is concerned to determine
whether the enquiry is held by an authority competent in
that behalf, and according to the procedure prescribed in
that behalf, and whether the rules of natural justice are
not violated. Where there is some evidence, which the
authority entrusted with the duty to hold the enquiry has
accepted and which evidence may reasonably support the
conclusion that the delinquent Officer is guilty of the
charge, it is not the function of the High Court in a petition
for a writ under Article 226 to review the evidence and to
arrive at an independent finding on the evidence. The
High Court may undoubtedly interfere where the
departmental authorities have held the proceedings
against the delinquent in a manner inconsistent with the
rules of natural justice or in violation of the statutory rules
prescribing the mode of enquiry or where the authorities
have disabled themselves from reaching a fair decision by
some considerations extraneous to the evidence and the
merits of the case or by allowing themselves to be
influenced by irrelevant considerations or; where the
conclusion on the very face of it is so wholly arbitrary and
capricious that no reasonable person could ever have
arrived at that conclusion, or on similar grounds. But the
departmental authorities are, if the enquiry is otherwise
properly held, the sole judges of facts and if there be
some legal evidence on which their findings can be based,
the adequacy or reliability of that evidence is not a matter
which can be permitted to be canvassed before the High
Court in a proceeding for a writ under Article 226 of the
Constitution.=
14.5. Having noticed aforesaid observation in S. Sree Rama
Rao (supra), in Ram Lal Bhaskar Vrs. State Bank of India,
(2011) 12 SCR 1036, it has been enunciated as follows:
<8. Thus, in a proceeding under Article 226 of the
Constitution, the High Court does not sit as an
Appellate Authority over the findings of the
disciplinary authority and so long as the
findings of the disciplinary authority are
supported by some evidence the High Court
does not re-appreciate the evidence and come
to a different and independent finding on the
evidence. This position of law has been reiterated in
several decisions by this Court which we need not
refer to, and yet by the impugned judgment the High
Court has re-appreciated the evidence and arrived at
the conclusion that the findings recorded by the
enquiry officer are not substantiated by any material
on record and the allegations leveled against the
respondent No.1 do not constitute any misconduct
and that the respondent No.1 was not guilty of any
misconduct.=
14.6. Pertinent here to have regard to the following
observations made in State of Karnataka Vrs. N.
Gangaraj, (2020) 1 SCR 616:
<8. In State of Andhra Pradesh Vrs. S. Sree Rama Rao,
AIR 1963 SC 1723, a three Judge Bench of this
Court has held that the High Court is not a court of
appeal over the decision of the authorities holding a
departmental enquiry against a public servant. It is
concerned to determine whether the enquiry is held
by an authority competent in that behalf, and
according to the procedure prescribed in that behalf,
and whether the rules of natural justice are not
violated. The Court held as under:
87. *** The High Court is not constituted in a
proceeding under Article 226 of the
Constitution a court of appeal over the decision
of the authorities holding a departmental
enquiry against a public servant: it is
concerned to determine whether the enquiry is
held by an authority competent in that behalf,
and according to the procedure prescribed in
that behalf, and whether the rules of natural
justice are not violated. Where there is some
evidence, which the authority entrusted with
the duty to hold the enquiry has accepted and
which evidence may reasonably support the
conclusion that the delinquent officer is guilty
of the charge, it is not the function of the High
Court in a petition for a writ under Article 226
to review the evidence and to arrive at an
independent finding on the evidence....9
9. In B.C. Chaturvedi Vrs. Union of India, (1995) 6 SCC
749, again, a three Judge Bench of this Court has
held that power of judicial review is not an appeal
from a decision but a review of the manner in which
the decision is made. Power of judicial review is
meant to ensure that the individual receives fair
treatment and not to ensure that the conclusion
which the authority reaches is necessarily correct in
the eyes of the court. The Court/Tribunal in its
power of judicial review does not act as an
appellate authority to re-appreciate the
evidence and to arrive at its own independent
findings on the evidence. It was held as under:
812. Judicial review is not an appeal from a
decision but a review of the manner in which
the decision is made. Power of judicial review
is meant to ensure that the individual receives
fair treatment and not to ensure that the
conclusion which the authority reaches is
necessarily correct in the eye of the court.
When an inquiry is conducted on charges
of misconduct by a public servant, the
Court/Tribunal is concerned to determine
whether the inquiry was held by a
competent officer or whether rules of
natural justice are complied with.
Whether the findings or conclusions are
based on some evidence, the authority
entrusted with the power to hold inquiry
has jurisdiction, power and authority to
reach a finding of fact or conclusion. But
that finding must be based on some
evidence. Neither the technical rules of
Evidence Act nor of proof of fact or evidence as
defined therein, apply to disciplinary
proceeding. When the authority accepts that
evidence and conclusion receives support
therefrom, the disciplinary authority is entitled
to hold that the delinquent officer is guilty of
the charge. The Court/Tribunal in its power of
judicial review does not act as appellate
authority to re-appreciate the evidence and to
arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere
where the authority held the proceedings
against the delinquent officer in a manner
inconsistent with the rules of natural justice or
in violation of statutory rules prescribing the
mode of inquiry or where the conclusion or
finding reached by the disciplinary authority is
based on no evidence. If the conclusion or
finding be such as no reasonable person would
have ever reached, the Court/Tribunal may
interfere with the conclusion or the finding, and
mould the relief so as to make it appropriate to
the facts of each case.
13. The disciplinary authority is the sole judge of
facts. Where appeal is presented, the Appellate
Authority has co-extensive power to re-
appreciate the evidence or the nature of
punishment. In a disciplinary inquiry the strict
proof of legal evidence and findings on that
evidence are not relevant. Adequacy of
evidence or reliability of evidence cannot
be permitted to be canvassed before the
Court/Tribunal. In Union of India Vrs. H.C.
Goel, (1964) 4 SCR 781, this Court held at page
728 that if the conclusion, upon consideration
of the evidence, reached by the disciplinary
authority, is perverse or suffers from patent
error on the face of the record or based on no
evidence at all, a writ of certiorari could be
issued.9
10. In High Court of Judicature at Bombay through its
Registrar Vrs. Shashikant S. Patil, (2000) 1 SCC
416, this Court held that interference with the
decision of departmental authorities is
permitted if such authority had held
proceedings in violation of the principles of
natural justice or in violation of statutory
regulations prescribing the mode of such
enquiry while exercising jurisdiction under
Article 226 of the Constitution. It was held as
under:
816. The Division Bench of the High Court seems to
have approached the case as though it was an
appeal against the order of the
administrative/disciplinary authority of the
High Court. Interference with the decision of
departmental authorities can be permitted,
while exercising jurisdiction under Article 226
of the Constitution if such authority had held
proceedings in violation of the principles of
natural justice or in violation of statutory
regulations prescribing the mode of such
enquiry or if the decision of the authority is
vitiated by considerations extraneous to the
evidence and merits of the case, or if the
conclusion made by the authority, on the very
face of it, is wholly arbitrary or capricious that
no reasonable person could have arrived at
such a conclusion, or grounds very similar to
the above. But we cannot overlook that the
departmental authority (in this case the
Disciplinary Committee of the High Court) is the
sole judge of the facts, if the enquiry has been
properly conducted. The settled legal
position is that if there is some legal
evidence on which the findings can be
based, then adequacy or even reliability of
that evidence is not a matter for
canvassing before the High Court in a writ
petition filed under Article 226 of the
Constitution.9
11. In State Bank of Bikaner and Jaipur Vrs. Nemi
Chand Nalwaya, (2011) 4 SCC 584, this Court held
that the courts will not act as an appellate court and
reassess the evidence led in the domestic enquiry,
nor interfere on the ground that another view is
possible on the material on record. If the enquiry has
been fairly and properly held and the findings are
based on evidence, the question of adequacy of the
evidence or the reliable nature of the evidence will
not be ground for interfering with the findings in
departmental enquiries. The Court held as under:
87. It is now well settled that the courts will
not act as an appellate court and reassess
the evidence led in the domestic enquiry,
nor interfere on the ground that another
view is possible on the material on record.
If the enquiry has been fairly and properly
held and the findings are based on
evidence, the question of adequacy of the
evidence or the reliable nature of the
evidence will not be grounds for
interfering with the findings in
departmental enquiries. Therefore, courts
will not interfere with findings of fact recorded
in departmental enquiries, except where such
findings are based on no evidence or where
they are clearly perverse. The test to find out
perversity is to see whether a tribunal acting
reasonably could have arrived at such
conclusion or finding, on the material on record.
Courts will however interfere with the findings
in disciplinary matters, if principles of natural
justice or statutory regulations have been
violated or if the order is found to be arbitrary,
capricious, mala fide or based on extraneous
considerations. (vide B.C. Chaturvedi Vrs.
Union of India, (1995) 6 SCC 749, Union of
India Vrs. G. Gunayuthan, (1997) 7 SCC 463,
and Bank of India Vrs. Degala Suryanarayana,
(1999) 5 SCC 762, High Court of Judicature at
Bombay Vrs. Shashi Kant S Patil, (2001) 1 SCC
416).
***
12. The fact that the criminal court subsequently
acquitted the respondent by giving him the benefit of
doubt, will not in any way render a completed
disciplinary proceedings invalid nor affect the
validity of the finding of guilt or consequential
punishment. The standard of proof required in
criminal proceedings being different from the
standard of proof required in departmental
enquiries, the same charges and evidence may lead
to different results in the two proceedings, that is,
finding of guilt in departmental proceedings and an
acquittal by giving benefit of doubt in the criminal
proceedings. This is more so when the departmental
proceedings are more proximate to the incident, in
point of time, when compared to the criminal
proceedings. The findings by the criminal court will
have no effect on previously concluded domestic
enquiry. An employee who allows the findings in the
enquiry and the punishment by the disciplinary
authority to attain finality by non-challenge, cannot
after several years, challenge the decision on the
ground that subsequently, the criminal court has
acquitted him.
***
14. On the other hand learned counsel for the
respondent relies upon the judgment reported as
Allahabad Bank Vrs. Krishna Narayan Tewari, 2017
2 SCC 308, wherein this Court held that if the
disciplinary authority records a finding that is not
supported by any evidence whatsoever or a finding
which is unreasonably arrived at, the Writ Court
could interfere with the finding of the disciplinary
proceedings. We do not find that even on touchstone
of that test, the Tribunal or the High Court could
interfere with the findings recorded by the
disciplinary authority. It is not the case of no
evidence or that the findings are perverse. The
finding that the respondent is guilty of misconduct
has been interfered with only on the ground that
there are discrepancies in the evidence of the
Department. The discrepancies in the evidence will
not make it a case of no evidence. The Inquiry Officer
has appreciated the evidence and returned a finding
that the respondent is guilty of misconduct.
15. The disciplinary authority agreed with the findings
of the enquiry officer and had passed an order of
punishment. An appeal before the State Government
was also dismissed. Once the evidence has been
accepted by the departmental authority, in
exercise of power of judicial review, the
Tribunal or the High Court could not interfere
with the findings of facts recorded by
reappreciating evidence as if the Courts are the
Appellate Authority. We may notice that the said
judgment has not noticed larger bench judgments in
S. Sree Rama Rao and B.C. Chaturvedi as
mentioned above. Therefore, the orders passed by
the Tribunal and the High Court suffer from patent
illegality and thus cannot be sustained in law.
Accordingly, appeal is allowed and orders passed
by the Tribunal and the High Court are set aside
and the order of punishment imposed is restored.=
14.7. The Hon9ble Supreme Court in the case of State of
Haryana Vrs. Rattan Singh, (1977) 2 SCC 491 while
dealing with standard of proof and evidence applicable in
the domestic inquiry, held as under:
<4. It is well settled that in a domestic enquiry the strict
and sophisticated rules of evidence under the Indian
Evidence Act may not apply. Ail materials which are
logically probative for a prudent mind are
permissible. There is no allergy to hearsay evidence
provided it has reasonable nexus and credibility. It
is true that departmental authorities and
administrative tribunals must be careful in
evaluating such material and should not glibly
swallow what is strictly speaking not relevant under
the Indian Evidence Act. For this proposition it is not
necessary to cite decisions nor text books, although
we have been taken through case law and other
authorities by counsel on both sides. The essence of
a judicial approach is objectivity, exclusion of
extraneous materials or considerations and
observance of rules of natural justice. Of course, fair
play is the basis and if perversity or arbitrariness,
bias or surrender of independence of judgment
vitiate the conclusions reached, such finding, even
though of a domestic tribunal, cannot be held good.
*** The simple point is, was there some evidence or
was there no evidence not in the sense of the
technical rules governing regular court proceedings
but in a fair common-sense way as men of
understanding and wordly wisdom will accept.
Viewed in this way, sufficiency of evidence in proof
of the finding by a domestic tribunal is beyond
scrutiny. Absence of any evidence in support of a
ending is certainty available for the court to look into
because it amounts to an error of law apparent on
the record. ***=
14.8. The Supreme Court in the case of M.V. Bijlani Vrs. Union
of India, (2006) 5 SCC 88 laid down as under:
<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 evidences to prove the
charge. Although the charges in a departmental
proceedings are not required to be proved like a
criminal trial, i.e., beyond all reasonable doubts, we
cannot lose sight of the fact that the Enquiry Officer
performs a quasi-judicial function, who upon
analysing 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.=
14.9. Following observation in General Manager (Operations),
State Bank of India Vrs. R. Periyasamy, (2015) 3 SCC 101
may be relevant:
<11. It is interesting to note that the learned Single Judge
went to the extent of observing that the concept of
preponderance of probabilities is alien to domestic
enquiries. On the contrary, it is well known that the
standard of proof that must be employed in domestic
enquiries is in fact that of the preponderance of
probabilities. In Union of India Vs. Sardar Bahadur,
(1972) 4 SCC 618 this Court held that a disciplinary
proceeding is not a criminal trial and thus, the
standard of proof required is that of preponderance
of probabilities and not proof beyond reasonable
doubt. This view was upheld by this Court in State
Bank of India Vrs. Ramesh Dinkar Punde, (2006) 7
SCC 212. More recently, in State Bank of India Vs.
Narendra Kumar Pandey, (2013) 2 SCC 740, this
Court observed that a disciplinary authority is
expected to prove the charges leveled against a
bank-officer on the preponderance of probabilities
and not on proof beyond reasonable doubt.=
14.10. As the authorities have settled the facts by
analysing the evidence on record with due adherence to
the principles of natural justice qua the petitioner having
afforded opportunity of hearing upon being directed by
the Central Administrative Tribunal in the Order dated
23.04.2010 passed in O.A. No.426 of 2008 filed at the
behest of the petitioner, this Court desists to interfere
with the Order dated 27.03.2019 of said Tribunal.
15. It is also pertinent to take notice of the fact that in the
affidavit sworn to in connection with filing of the instant
writ petition the petitioner has stated to be about 64
years. Had the petitioner continued in service, she would
have retired on attaining age of superannuation, i.e., 60
years as provided under Article 51 of the Education
Code for Kendriya Vidyalayas. The writ application being
filed in July, 2019, the petitioner would have got retired
in and around 2015.
15.1. Vide Ground No. <E= at paragraph 12 of the writ petition
it has been stated thus by the petitioner:
<For that during pendency of the Original Application the
applicant-petitioner has got retirement on attaining the
age of 60 years for which she had filed a petition for grant
of retiral benefit which should have been adjudicated by
the learned Central Administrative Tribunal but this said
petition was rejected against which the petitioner had
moved the Hon9ble High Court in W.P.(C) No.23823/2017.
The Hon9ble High Court did not accept the stand of the
petitioner for addition of the prayer in the O.A. on the
ground that the case was at hearing stage but practically
this was not at hearing stage. However the Hon9ble High
Court rejected the writ petition directing the learned CAT
to dispose of the Original Application expeditiously. So the
learned Central Administrative Tribunal should have gone
through this aspect but arbitrarily dismissed the O.A. for
which the applicant is highly prejudiced.=
15.2. This Court in the aforesaid referred case, being W.P.(C)
No. 23823 of 2017, vide Order dated 01.12.2017 passed
the following order:
<1. Heard learned counsel for the petitioner.
2. This Writ Petition has been filed by the petitioner
challenging the order dated 27.04.2017 passed by
the Central Administrative Tribunal, Cuttack in M.A.
No.260/88/2017 arising out of O.A.
No.260/229/2012 rejecting the application to
amend the Original Application.
3. Earlier the petitioner had approached the Tribunal in
O.A. No.426 of 2008, which was disposed of on
23.04.2010. The Tribunal has quashed the order of
removal from service passed by the Ad hoc
Disciplinary Authority as well as the order passed
by the Appellate Authority rejecting the appeal
preferred by the petitioner and remitted the matter
back to the Appointing Authority/Ad hoc Disciplinary
Authority with a directed to give an opportunity to
the petitioner of being heard and pass orders as
deemed fit and proper in accordance with law. The
Tribunal further directed the opposite parties to
consider the prayer of the petitioner for voluntary
retirement from service. However, the authorities are
not complying such direction of the Tribunal and till
date the prayer of the petitioner to retire voluntarily
from service has not been considered. Thus he has
again approached the Tribunal in the aforesaid
Original Application, which is still pending. In the
said Original Application the petitioner has filed an
application for amendment to incorporate a further
prayer in the Original Application, which was
rejected by the Tribunal vide impugned order.
4. Learned counsel for the petitioner submitted that the
additional prayer is necessary for complete
adjudication of the matter. Such amendment was
objected by the opposite parties that in case it is
allowed it will change the nature and character of
the Original Application. However, the Tribunal
considering the rival submission of the parties held
that the Original Application has already been part
heard by a Division Bench and the amendment is
not called for as the order of removal and order of
rejection by the appellate authority are under
challenge.
5. In view of the above facts and as the Original
Application is pending since 2012 and already part
heard by the Tribunal, without going into the merits
of the case, we dispose of this Writ Petition with a
request to the Central Administrative Tribunal,
Cuttack Bench, Cuttack for early hearing of O.A.
No.260/229/2012, on production of certified copy of
this order.=
15.3. The petitioner accepted the aforesaid order of this Court
passed in W.P.(C) No.23823 of 2017, and laid the same
to rest without carrying the same to higher forum. Upon
hearing counsel for the parties, the learned Central
Administrative Tribunal having passed final orders
confirming the Order of the Appellate Authority, who
dismissed appeal against the decision not to reinstate
the petitioner in service taken by the Disciplinary
Authority by appreciating evidence on record, no relief
<to grant all arrear financial service benefits and
consequential benefits to the petitioner along with retiral
benefit= as prayed for in the writ petition can be acceded
to.
CONCLUSION:
16. On compliance of direction of the Central Administrative
Tribunal, the Disciplinary Authority conducted hearing
by adhering to the principles of natural justice. Based on
evidence said Authority held that long absence of the
petitioner without sanction attracted exercise of power
under Article 81(D) of the Education Code for Kendriya
Vidyalayas. The alternative prayer to accord her
voluntary retirement is also refuted by the said Authority
on the aegis of Rule 48A of the Central Civil Services
(Pension) Rules, as the petitioner did not have qualified
period of service of 20 years. The finding of fact has been
upheld by the Appellate Authority which also got
affirmed by the Central Administrative Tribunal vide
Order dated 27.03.2019 passed in O.A. No.260/229 of
2012.
16.1. Having gone through the factual trajectory of the case
and the issues involving legality, this Court does not find
the claims of the petitioner to be justified either on
factual averments or on the legal pleas raised. There is
no quarrel that mere acknowledgement of a leave
application would not amount to approval or sanction of
the leave. These are two different things altogether.
16.2. What is noteworthy to remark is that it is a classic case
of chronic absenteeism, triggered by the fact that the
petitioner is posted at Kendriya Vidyalaya, Angul which
is other than her native place, i.e., Balasore. Prolonged
absence from duty showing indiscipline attitude by
refusing to receive official communication called for
unwarranted situation and such behavior is bane of
public service fully seems to fit the facts of the case. The
opposite party Nos.1 to 5 having not only given a long
rope to the petitioner with a view to bring her back to
join duty, but also observed the principles of natural
justice as well as the procedural requirements
prescribed under Article 81(D) of the Education Code for
Kendriya Vidyalayas coupled with Rule 48A of the
Central Civil Services (Pension) Rules, 1972.
16.3. The orders of the Disciplinary Authority as well as the
Appellate Authority are found to be speaking and
reasoned. After remand from the Central Administrative
Tribunal in O.A. No.426 of 2008 vide Order dated
23.04.2010, the Disciplinary Authority had afforded
reasonable opportunity of personal hearing and
proceeded to decide the matter on 14/22.09.2010. It has
been reiterated in Viveka Nand Sethi Vrs. Chairman, J&K
Bank Ltd., (2005) 5 SCC 337, that <the principle of
natural justice, it is trite, is no unruly horse. When facts
are admitted, an enquiry would be an empty formality.
Even the principle of estoppel will apply. [See, Dr.
Gurjeewan Garewal (Mrs.) Vrs. Dr. Sumitra Dash (Mrs.),
(2004) 5 SCC 263]. The principles of natural justice are
required to be complied with having regard to the fact
situation obtaining therein. It cannot be put in a
straitjacket formula. It cannot be applied in a vacuum
without reference to the relevant facts and
circumstances of the case. [See, State of Punjab Vrs.
Jagir Singh (2004) 8 SCC 129; and Karnataka State Road
Transport Corporation Vrs. S.G. Koturappa, (2005) 3 SCR
1095]=. The Order dated 27.03.2019 of the Central
Administrative Tribunal in dismissing the original
application is in consonance with the provisions of
Article 81(D) of the Education Code for Kendriya
Vidyalayas coupled with Rule 48A of the Central Civil
Services (Pension) Rules, 1972.
16.4. It is trite that there is little scope to show indulgence by
re-appreciating concurrent finding of fact by the
statutory authorities in exercise of power conferred
under Article 226/227 of the Constitution of India,
unless glaring flaw in arriving at the conclusion is
demonstrated. Ergo, it could not be said that the
authorities including the Central Administrative
Tribunal failed to appreciate evidence and nothing is
placed on record by the petitioner to show that the
authorities have reached at a conclusion, on the very
face of it, is so wholly arbitrary and capricious that no
reasonable person of prudence could ever have arrived
at such conclusion.
17. Judged on the anvil of aforesaid premise, it is irresistible
that the interference by this Court with the conclusion
based on concurrent finding of fact is totally
unwarranted and unsustainable, and further, this Court
is persuaded to hold that it is wholly unjustified to
entertain the writ petition.
18. In the aforesaid facts and circumstances, the writ
petition, sans merit, deserves to be dismissed and
accordingly, this Court does so.
18.1. The writ petition stands dismissed in the above terms
without any order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Dr. B.R. SARANGI, ACJ. I agree.
(DR. B.R. SARANGI)
ACTING CHIEF JUSTICE
Orissa High Court, Cuttack
The 21st November, 2023//Aswini
Designation: PA(SECRETARY-IN-CHARGE)
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Nov-2023 15:12:51
