Narayan Chandra Paul vs Union of India and Others

Jayanta Kumar Biswas, J.—The petitioner in this WPCT under art. 226 of the Constitution of India dated December 10, 2012 is questioning an order of the Calcutta Bench of the Central Administrative Tribunal dated March 30, 2012 dismissing his OA No. 1874 of 2009. The petitioner was working in ESIC as a UDC. By a charge-sheet dated May 7, 2005 (WPCT p. 39) his disciplinary authority initiated disciplinary proceedings under the Employees'' State Insurance Corporation (Staff and Conditions of Services) Regulations, 1959. The allegation was that he had. unauthorizedly absented himself from office from August 16, 2002 to August 31, 2003.

The petitioner participated in the proceedings. He took the plea that he had been prevented from attending office by the Branch Manager thereof. Before the inquiry officer he said that he had attended office on August 17, 2002; but that the Branch Manager did not permit him to work saying that he was a missing man. In proof of the plea he produced a copy of a representation dated August 27, 2003 (WPCT p. 31), he made to the Regional Director.

The relevant part of the representation dated August 27, 2003 is quoted below:--

I am not un-authorised absence. I was told by the Local Office Kanthalpara that you are a missing man you can not be allowed to put signature in the Attendance Register. You have to vacate the missing Diary at first then you come to office. It is very strange and marvellous. I am physically present-I am declared missing. For the same I lodged a complain against the local office in the Naihati P.S. Vide GDE No. 2753 dt. 17.8.02. For the missing Diary, I cannot be joined the service. For my un-authorised absence the office is solely responsible.

The officer conducting the inquiry took down oral evidence and admitted documentary evidence. Evidence revealed that the petitioner''s wife lodged a diary with the officer in charge of Jagatdal police station on September 23, 2002 that the petitioner had gone missing on August 27, 2002 (WPCT p. 28); and that the officer in charge of Jagatdal police station informed the Regional Director of ESIC that since the petitioner had come back to his home on August 27, 2003 of his own accord, the missing diary dated September 23, 2002 stood vacated.

The petitioner started attending office and working from September 1, 2003. The officer appointed for conducting the inquiry submitted his report dated October 14, 2005 (WPCT pp. 47-64) that the charges detailed in the two articles were duly proved.

The disciplinary authority passed an order dated June 9, 2006 (WPCT p. 67) accepting the findings of the inquiry officer and inflicting the penalty of reduction of pay by four stages in the time scale of pay for a period of three years adding that the petitioner would not earn any increment during the period of reduction, but that on the expiry of the period the reduction would not have the effect of postponing his future increments of pay and the period of unauthorised absence would be regularised by granting available leave.

The disciplinary authority recorded the findings that the petitioner had brought baseless and false allegations against his superior that he was not permitted to work in the office. The petitioner submitted an appeal dated August 3, 2007 (WPCT p. 73). The second para of the appeal is quoted below:--

It is mentioned in this connection that I did not perform my duties from 16-8-2002 to 31-8-2003 due to a ''Missing Diary'' lodged by my wife who is out of controlled. Office told me to vacate the Missing Diary then join the service. She did not vacate the Missing Diary. Finally with the help of a Journalist (Bartaman) I just joined my service after a long period which already mentioned.

By an order dated September 1, 2008 (WPCT p. 75) the appellate authority rejected the appeal for the reasons stated in the order. Feeling aggrieved, the petitioner filed the OA. The Tribunal has examined the case in detail and concluded that the petitioner having remained unauthorizedly absent from office without any acceptable explanation, had been treated by his disciplinary authority quite leniently. The Tribunal dismissed the OA.

Advocate for the petitioner has argued that the disciplinary authority was wrong in alleging that during the period in question the petitioner unauthorizedly absented himself from office; for the document at p. 31 clearly proved the petitioner''s case that the Branch Manager of the office had prevented the petitioner from attending office and working there. Advocate has argued that since the petitioner was unable to attend office, proceedings could not be initiated alleging unauthorised absence.

We have noted hereinbefore that before the inquiry officer the petitioner said that on August 17, 2002 when he had attended the office the Branch Manager thereof did not permit him to work saying that he was a missing man. Relevant part of the document at p. 31 has been quoted hereinbefore. The document is a representation of the petitioner to the Regional Director dated August 27, 2003. He produced it in the inquiry in proof of his case that he had been prevented from working in the office.

In the representation dated August 27, 2003 the petitioner stated that on August 17, 2002 he had lodged a diary that three ESIC officials of the local office prevented him from working in the office saying that he was a missing man. The admitted position is that the missing diary in question was lodged by the petitioner''s wife only on September 23, 2002. There is nothing to show that before August 27, 2003 the petitioner had submitted any representation or any application to any official of ESIC for any purpose.

The falsehood of the petitioner''s case that on August 17, 2002 some officials of the branch did not permit him to work saying that he was a missing man is evident. The afterthought case sought to be made out in the representation dated August 27, 2003 cannot stand a moment''s test. On August 17, 2002 the missing diary lodged by the petitioner''s wife on September 23, 2002 could not be within the knowledge of the officials of the office. There is no doubt that the absence was willful. The officer conducting the inquiry, the disciplinary authority and the appellate authority all gave concurrent findings of fact that during the period in question the petitioner had unauthorizedly absented himself from office. The Tribunal examining the case in great detail did not find any wrong with the findings. We do not see any compelling reason to interfere with the findings. As to the penalty, we see no reason to say that it is shockingly disproportionate to the gravity of the proven misconduct. The disciplinary authority (he mentioned in his order) took a lenient view.

For these reasons, we dismiss the WPCT. No costs. Certified xerox.