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Judgment
ORDER
Mrs. Jasmine Ahmed, Member (J)
This is second round of litigation. Earlier the applicant had filed OA 257/2015. Brief background leading to filing of OA 257/2015 was that the applicant who was working as a Lab Technician in Dr. B.R. Ambedkar Hospital of All India Institute of Medical Sciences (AIIMS), applied for Child Care Leave (CCL) to take care of her new born child. She was initially sanctioned leave for 75 days with effect from 16.02.2012 to 30.04.2012. She prayed for extension of leave vide her applications dated 18.06.2012, 10.07.2012, 26.07.2012, 31.08.2012 and finally on 1.11.2012 to extend her leave upto 30.11.2012. The applicant received no response to her applications and on the contrary, she received charge memo dated 22.01.2013 wherein it was alleged that she was unauthorizedly absent after taking 44 days of CCL upto 31.03.2012. It was also stated in the memo that she was asked to join duty vide communication dated 25.05.2012 and reminded to do the same vide communications dated 13.06.2012 and 6.07.2012. It was also mentioned that a Show Cause Notice was also issued to the applicant on 19.07.2012. The applicant, however, stated that due to her own problems and on receiving the charge memo she tendered her resignation on 29.01.2013. However, nothing was heard from the respondents. On 15.09.2014, when circumstances improved, the applicant wrote to the respondents requesting them to permit her to withdraw her resignation and to join duty. The respondents, however, vide communication dated 5.11.2014 informed her that her resignation had already been accepted by the competent authority and under the rules she could not be allowed to withdraw the same. The applicant pleaded in OA 257/2015 that once the respondents had initiated disciplinary proceedings against her, they could not have accepted her resignation when the same was pending. The applicant also pleaded that the competent authority had itself sanctioned her leave upto 30.04.2012 and, therefore, acceptance of her resignation retrospectively with effect from 16.02.2012 was illegal.
The respondents in their reply in OA 257/2015 submitted that the applicant was sanctioned CCL only upto 30.03.2012. She applied for extension of CCL till 28.04.2012 which was not granted. On 23.05.2012, a report regarding her absence from duty was received from the Head of Unit and on 25.05.2012 she was called to attend duty. Despite that, she continued to make requests for extension of CCL and finally on 1.11.2012, the Director, AIIMS approved initiation of disciplinary action against the applicant under CCS (CCA) Rules. On 22.01.2013, when a charge sheet was issued to the applicant for unauthorized absence, she tendered her resignation from the job due to personal reasons which was accepted on 2.05.213 with effect from 16.02.2012. Thereafter on 15.09.2014, the applicant requested for permission to withdraw her resignation, which was rejected on 5.11.2014. Having heard both sides and perusing the material on record and going through the judgments cited, the Tribunal disposed of OA 257/2015 as follows:
“6.On the basis of above arguments, we are of the opinion that Communication dated 02.05.2013 by which the resignation of the applicant was purportedly accepted by the respondents is unsustainable in law and is therefore quashed and set aside. Consequently, the Communication 05.11.2014 by which request of the applicant for withdrawal of resignation was rejected on the ground that her resignation had already been accepted by the Competent Authority and that withdrawal of resignation after such acceptance was impermissible under Rules, also becomes unsustainable and is set aside. As a consequence of setting aside of the above two Communications, it would follow that the applicant was still in service on 15.09.2014 and when she applied for withdrawal of her resignation. As per case law cited above, as long as master and servant relationship had not ceased, the employee is at liberty to withdraw his resignation at any time. In view of the aforesaid, the respondents are bound to accept her request for withdrawal of her resignation and she has to be taken back on duty. We, therefore, direct that the applicant be taken back on duty within four weeks from the date of receipt of a certified copy of this order. The respondents shall pass separate orders as to how the period commencing from 01.05.2012 (CCL upto commencing from 01.05.2012 (CCL upto 30.04.2012 has already been sanctioned) till her date of joining be treated. The respondents shall also be at liberty to proceed further with the charge sheet dated 22.01.2013 issued to the applicant, if so advised. Accordingly, the O.A. is disposed of. No costs.”
In compliance of the Tribunal’s directions, the applicant was taken back on duty on 2.05.2016.
In the instant OA, the grievance of the applicant is that while the Tribunal in its order in OA 257/2015 (supra) gave liberty to respondents to proceed further with the charge sheet dated 22.01.2013, if so advised, the respondents have issued her a fresh charge memo dated 1.06.2017. The applicant has challenged the aforementioned charge memo primarily on the following grounds:
Because the charge memo is not maintainable having been issued by an incompetent authority;
Because as per rules, an employee is entitled to CCL up to 730 days at a stretch combined with leave due of any other kind in the interest of welfare of newly born child; and
Because the entire matter regarding leave of absence has been adjudicated by the Tribunal in OA No. 257/2015 (supra) decided on 4.12.2015 wherein it has clearly been established and now admitted in the charge memo that the applicant was on sanctioned child care leave from 16.02.2012 to 30.04.2012.
In the above background, the applicant has prayed for the following reliefs:-
Quash and set aside the Charge Memo dated 1.06.2017 being void ab-initio;
Direct the respondents to regularize the period of absence from 1.05.2012 to 14.09.2014 in terms of Child Care Leave as per CCS (Leave) Amendment Rules, 2009;
Direct the respondents to treat the period from 15.09.2014 till date of joining on 3.05.2016 as waiting for orders; and
To award costs on the respondents in favour of the applicant.”
The respondents in their reply have stated that once the order of the Tribunal was accepted by the parties, there was no occasion left for continuing with the charge sheet dated 22.01.2013. In this background, fresh charge memo dated 1.06.2017 has been issued regarding different period. The respondents have taken several other grounds in their reply viz. (i) no cause of action has accrued to the applicant to file the OA and no enforceable right of the applicant has been infringed; (ii) the Tribunal ought not to interfere at the interlocutory stage and it has no jurisdiction to go into the correctness or truth of the charges; and (iii) examination of correctness of charges at the stage of framing of charges is beyond the scope of judicial review and in support thereof have relied upon Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, AIR 2006 SC 2609, UOI Vs. Upender Singh, JT 1994 (1) SC 658, and Dy. Inspector General of Police Vs. K.S. Swaminathan, (1996) 11 SCC 498.
Heard the learned counsel for the parties and perused the documents on record.
Though the respondents have contested the OA on several grounds and cited number of judicial pronouncements in support thereof, we feel it unnecessary to go into all those as in our opinion the fresh charge memo issued now to the applicant dated 01.06.2017 is not maintainable as the Tribunal in its order dated 04.12.2015 in OA 257/2015 (supra) only gave liberty to proceed further with the charge sheet dated 22.01.2013. In pursuance of the Tribunal’s order, instead of proceeding with the earlier charge sheet dated 22.01.2013 and without coming to any conclusion on the previous charge sheet, the respondents have issued fresh charge memo dated 1.06.2017 which is non est in the eyes of law. The charge memo dated 01.06.2017 is, therefore, quashed and set aside. The respondents shall, however, be at liberty to proceed further with the 1st charge sheet dated 22.01.2013, if so advised, as directed by the Tribunal in its earlier order in OA 257/2015 (supra). The O.A. is disposed of.