AI Structured Summary
Not yet generated for this judgment
Judgment
Pradeep Nandrajog, J.—The petitioner, Shri Madan Lal challenges the order dated 28.01.1993 passed by the disciplinary authority imposing the penalty of removal from service. At the relevant point of time, the petitioner was working as a permanent employee designated as a Junior Salesman under the respondent and was posted in the surplus pool.
The petitioner was issued a memorandum of charges vide memo dated 16.04.1991. His response was found inadequate and the disciplinary authority appointed an inquiry officer with a direction that the inquiry be held as per Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 read with Rule 12 of the DTDC Staff Services Rules, 1986.
As per the memorandum of charges No. VG/10581/4/91/DTDC dated 18.03.91 the petitioner was charged as under:
It is alleged that Shri Madan Lal while working in the Delhi Tourism as Jr. Salesman lacked interest and devotion to duties thus violation of Rule 3 of Conduct Rules 1964.
The statement of imputation on basis where of the charge was alleged reads as under:
''Statement of Imputation of misbehaviour in support of the Article of Charge framed against Shri Madan Lal, Jr. Salesman.
It is alleged that Shri Madan Lal was habitual of proceeding on leave without intimation/prior approval of the Competent authority, on many occasions he has proceeded on leave without prior intimation/approval of the Competent Authority and produced the application after a shining his duties. A list of such occasions is as under:
11.12.89 to 18.12.89
07.01.91 to 13.03.91 (corrected and admitted as 01.02.91)
This action on the part of Shri Madan Lal Jr. Salesman goes to suggest that Shri Madan Lal lacks the interest and devotion to duties hence violation of Rule 3 of Conduct Rules 1964. Shri Madan Lal Jr. Salesman is hereby also informed that earlier also he was charge sheeted for major penalties under Rule 14 of the CCS (CCA) Rules 1965 vide Memo No. PER/1634/4/ 80/DTDC/2582 dated 19.9.88 for habitual absenteeism and proceeding on unauthorised leave without prior intimation as well as approval of the competent authority. After conducting proper departmental inquiry against the said Sh. Madan Lal the following penalties were awarded to him:
Reduction to a lower stage in the pay grade in which Sh. Madan Lal is working for a period of 2 years and he will not earn any increment during the penalty period."..........
It may be noted here that the statement of imputation reproduced herein above is a verbatim copy from the document produced before the Court and hence has been noted with the spelling and grammatical errors.
At the inquiry the statement of 4 departmental witnesses were examined namely Shri Chandra Mohan Bassi, the Deputy Manager; Ms. Madhu Sridhar, Manager (Personnel); Shri Ganga Saran, Manager (Shop) and Shri Naresh Narula, Assistant Manager (Accounts). Considering the testimony of the four departmental witnesses and the documents proved, the inquiry officer submitted a report, inter alia, to the following effect:
On the basis of the statement of the witnesses and documents, following facts emerges:
That the official was in the habit of proceeding on leave without information and later on regularising it as mentioned by the witnesses.
Even after transfer to Head Office from operational units, the behaviour of the charged official improve and proceeded on leave without following the laid down procedure. Keeping in view the statement of witnesses and documents it is proved beyond doubt that Shri Madan Lal white working in Delhi Tourism as Jr. Salesman lacked the interest and devotion to duties thus violation of Rule 3 of Conduct Rules, 1964.
After receiving the report of the inquiry officer and supplying the same to the petitioner for his response and considering the two. vide order dated 02.02.1993, the disciplinary authority imposed the penalty of removal from service with immediate effect. The order dated 02.02.1993 reads as under:
Office Order
WHEREAS an inquiry under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 read with Rule 12 of the DTDC Staff Service Rules 1986 was initiated against Shri Madan Lal, Jr. Salesman.
WHEREAS Shri K.B. Sharma, Manager, was Appointed as Inquiry Officer to inquire into the charges framed against Shri Madan Lal, Jr. Salesman.
WHEREAS an Inquiry Report has been received from K.B. Sharma, Manager. WHEREAS the findings of Inquiry Report was communicated vide Memorandum dated 11.11.91 to Shri Madan Lal.
AND WHEREAS the undersigned has carefully gone through the Inquiry Report and the reply of the Defence Assistant pertaining to the Report of the Inquiry Officer. I have also seen that Shri Madan Lal, was charge sheeted earlier on similar grounds for major penalty in Sept. 1988 and a major penalty was imposed on him.
DTTDC is a commercial Organisation and the official when proceeds on leave without information, it affects the working and commercial Transaction of the Corporation. Earlier a lenient view was taken against Shri Madan Lal, takes place from the Inquiry Report it may be seen that despite giving opportunity to Shri Madan Lal, Jr. Salesman, he has not shown any attempt/inclination to improve and has shown total lack of interest and devotion to work.
AND WHEREAS besides above Shri Madan Lal, was placed under suspension vide order No. IMFI/5638/9192/DTDC/2112, dated 15.09.91 and the Police Inquiry is still pending against Shri Madan Lal, in the above said matter and Shri Madan Lal shall be liable to meet the outcome of the said Inquiry.
AND NOW, THEREFORE, in view of the above, the penalty of removal from service is imposed upon Shri Madan Lal, Jr. Salesman with immediate effect.
Disciplinary Authority
(Tarlochan Singh)
Managing Director
It may be noted that during the inquiry various documents were proved by the witnesses which, inter alia included the memorandum issued to the petitioner on an earlier occasion resulting in a penalty imposed vide order dated 19.9.1988, reference whereof was made in the memorandum of charge pertaining to the instant matter. The statement of imputation pertaining to the earlier inquiry which was proved reads as under:
Statement of Imputation of misbehaviour in support of the Article of charge framed against Shri Madan Lal. Jr. Salesman
It is alleged that Shri Madan Lal was habitual of proceeding on leave without intimation/prior approval of the Competent Authority. On 13 occasions he has proceeded on leave without prior intimation approval of the Competent Authority and produced the applications after his duties. A list of such occasions is as under:
13.3.85 to 19.3.85 31.8.85
5.9.85
5.11.85 to 6.11.85
11.2.85 to 14.2.86
26.12.85 to 27.12.85
8.1.86 to 9.1.86
26.2.86 to 28.2.86
27.3.86 to 29.3.86
15.9.86 to 21.9.86
7.3.88 to 11.3.88
22.2.88 to 26.2.88
7.3.88 to 11.3.88
2.8.88 to 11.8.88
Despite the fact that he was given a warning and he was directed to apply for leave 15 days in advance, he proceeded on leave with effect from 2.8.88 without prior intimation and approval of the Competent Authority. This action on the part of Shri Madan Lal, Jr. Salesman goes to suggest that Shri Madan Lal lacks interest and devotion to duties hence violation of Rule 3 of Conduct Rules 1964.
Another document proved during inquiry was an office note dated 15.11.1990 proved by Ms. Madhu Sridhar which reads as under:
Manager (IMFL) may kindly like to that the following officials are habitual for taking leave without any prior permission from the undersigned as my shop have surfer due to unauthorised leave/absent, later on I have sanctioned as per their request, thinking they will not do anything in future but all in van. So, the undersigned hereby request to withdraw these officials viz:
(i) Sh. Madan Lal Jr. Salesman
(ii) Sh. Bhopal Singh Helper
Submitted,
Shop Manager
D.T. & T.D.C.
Wine Shop Nehru Place
M.D. May please approve for transfer of staff. We may also watch their performance at H.O. And take further action thereafter.
(Madhu)
15.11.90
Learned counsel for the petitioner, during arguments, urged that the findings recorded by the inquiry officer which have been accepted by the disciplinary authority are vitiated on account of the evidence being misconstrued and relevant record not being produced by the department. Learned counsel urged that Shri Chandra Mohan Bassi, the Deputy Manager had admitted in his testimony that there was a practice in the office to record telephonic messages pertaining to leave intimation being communicated over the telephone and that Shri Chandra Mohan Bassi did not produce the record pertaining thereto.
Second contention urged was that the impugned order of removal was vitiated on account of a material circumstance being ignored. Referring to the observations in the order that DTTDC is a commercial organization and when officials proceed on leave without intimation, it affects the working and commercial transaction of the corporation, learned counsel drew attention to the statement of Shri Chandra Mohan Bassi where he stated that at the relevant time the petitioner was in the surplus pool. Submission made was that being in the surplus pool and not at a shop the question of commercial transactions of the corporation being adversely affected did not arise. Counsel urged that the disciplinary authority ignored this fact and treated as if the petitioner was functioning at a place where commercial transactions were being effected.
Third contention urged was that admittedly for the period in question leave was subsequently sanctioned in favour of the petitioner and thus the question of any misconduct on account of unauthorized absence from duty did not arise. Learned counsel cited AIR 1976 AP 75 G. Papapiah vs. Asstt. Director, Medical Services Secundrabad in support of the said plea.
Fourthly, counsel urged that the penalty imposed was disproportionate for the reason the short period of leave, even if treated as unauthorized absence was not a misconduct of a kind which attracted the major penalty of removal.
Lastly, counsel urged that the appellate order dated 26.9.1993 passed by the appellate authority rejecting the statutory appeal filed by the petitioner was illegal inasmuch as the appeal suffered a summary dismissal by a laconic order.
Learned counsel for the respondent countered the said pleas by urging that no evidence was misconstrued and no relevant evidence was ignored. Learned counsel submitted that Chandra Mohan Bassi, Deputy Manager had clearly stated that he did not receive any telephonic intimation from the petitioner pertaining to his sickness. Thus, counsel urged that where was the occasion to produce a record of the telephone calls received. Repelling the second contention urged, learned counsel for the respondent submitted that in the surplus pool, petitioner could be deputed at any place and could be placed at any shop established by the respondent. Drawing attention to the note dated 15.11.1990 of Ms. Madhu Sridhar counsel urged that there was evidence on record that the habit of the petitioner absenting without prior intimation was affecting the business of the corporation. Qua the third plea, learned counsel urged that regularizing leave did not mean that the misconduct of proceeding on leave without prior intimation stood wiped out. On the plea that the penalty imposed was disproportionate, counsel urged that past conduct of the petitioner evidenced by the previous inquiry in which it was proved that on 13 different occasions the petitioner indulged in availing leave without prior intimation or sanction justified the imposition of the penalty of removal. The plea that the appellate authority rejected the appeal in a summary manner was repelled with reference to the original record produced at the hearing which showed that while considering the statutory appeal, Shri J.P. Rai, the General Manager penned a note dated 12.5.1993 recording that keeping in view the gravity of the offence penalty which may be imposed should be anyone of the three, namely, reduction to a lower stage in the time-scale for a specified period; or reduction to a lower time-scale of pay with forfeiture of the period of reduction for future service; or compulsory retirement. Considering the note dated 12.5.1993 the appellate authority Ms. A. Sood recorded a note that the years of qualifying service may be intimated to her. It was followed by a note that the service rendered by the petitioner did not entitle him to any terminal benefits towards pension as he had yet to attain the length of qualifying service. Only thereafter Ms. A. Sood passed the order rejecting the appeal.
The first contention urged needs a reference be made to the statement of Shri Chandra Mohan Bassi, Deputy Manager of the respondent who appeared as a witness of the department. Relevant question and answer is as under:
Question: No this is wrong, there was proper information on telephone regarding the sickness and you attended the phone.
A: Whenever such a communication is received over the phone it is recorded in writing so that the leave could be regularized later on. So far as I recollect stressing on my memory I am sure that I did not receive any phone.
I fail to understand what record could be produced evidencing that the petitioner gave information of his being on leave over the telephone when Shri Chandra Mohan Bassi the person whom petitioner claimed was the recipient of the information categorically deposed that he did not receive any telephonic information from the petitioner. Thus, it cannot be said that the disciplinary authority or the inquiry officer misconstrued evidence or that the inquiry is vitiated on account of relevant record not being produced.
The second contention urged is of no substance for the reason no doubt at the relevant time the petitioner was in the surplus pool but that does not mean that the commercial interest of the corporation was not prejudicially affected by the petitioner repeatedly availing leave without prior sanction and without a prior intimation. Admittedly the petitioner was a junior salesman. His place was at the retail shops run by DTTDC. Evidenced by the note dated 15.11.1990 of Ms. Madhu Sridhar is the fact that the petitioner had to be sent to the surplus pool on account of absenteeism without prior intimation or leave adversely affecting the business of the wine shop at Nehru Place. Further, the concept of a reserve pool needs to be understood. A person in the reserve pool is deputed to discharge the duties at a seat the incumbent whereof has availed prior leave. The replacement to the seat is from amongst a reserve pool employee. The senior officer in charge of the establishment deputes a reserve pool employee to man a seat, holder whereof has given prior intimation of being on leave. If this reserve pool employee who is otherwise expected to be on duty does not come to the office, certainly, the commercial interest of the organization is prejudicially affected. Thus, note dated 15.11.1990 apart, the effect of availing leave without prior sanction and without prior intimation by the petitioner has certainly affected the working of the organization. In any case, on the evidence on record the said view is a reasonable and a probable view and this Court exercising writ jurisdiction would not sit over judgment as an appellate authority over the decision of the disciplinary authority.
The third contention pertaining to leave being subsequently sanctioned was attempted to be made good with reference to the decision of a learned Single Judge of the Allahabad High Court in G. Papapiah''s case (supra).
The law is settled on the point that the merely because the leave of an employee is sanctioned or is accounted for the purpose of paying the monthly salary does not mean that the misconduct of availing leave without prior sanction and/or without prior intimation stands waived.
In the decision reported as 1969 SLR 274 (SC) State of Madhya Pradesh v. Harihar Gopal the Hon''ble Supreme Court had clearly stated that where a person is unauthorisedly absent, an order which has the effect of regularising the period of unauthorised absence is only for the purposes of regularising the leave and does not condone the act of unauthorised absence.
In the decision reported as Maan Singh Vs. Union of India (UOI) and Others, the Hon''ble Supreme Court reaffirmed its earlier decision in Harihar Gopal''s case (supra). The latest on the point is the judgment reported as State of Punjab and Others Vs. Charanjit Singh, In para 5 it was held:
In the The State of Punjab and Others Vs. Bakshish Singh, which was relied upon by the Courts below in holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularized the order of punishment also becomes bad in law and void ab initio. While deciding Bakshshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularizing the leave and thereby the effect of punishment is not wiped out.
In the light of the above noted judgments of the Hon''ble Supreme Court it is clear that merely because a person has leave to his credit does not mean that leave can be availed of at the sole discretion of the employee as and when he chooses to go on leave. Ordinarily leave would not be denied as per wishes of the employee but exigencies of work may require the presence of the employee. Besides, during the leave period, work being performed by the employee has to be entrusted to someone else. The employer has to reorganise work or make alternative arrangement.
Unfortunately, the learned Single Judge of the Andhra Pradesh High Court did not consider the decision of the Hon''ble Supreme Court in Harihar Gopal''s case (supra) when decision in G.Papapiah''s case (supra) was pronounced.
The plea that the penalty imposed was disproportionate ignores the previous misconduct on the same propensity i.e. availing leave without prior sanction and without prior intimation. As recorded in the statement of imputation, at a previous inquiry it was proved that on as many as 13 occasions the petitioner remained on unauthorized leave without prior sanction and without prior intimation. It need hardly be re-emphasized that as a salesman the petitioner was to be at any sale outlet of the respondent and sudden absence would obviously prejudicially affect the commercial working of the respondent. The gravity does not flow from one incident of availing unauthorized leave. It flows from the repeated incidents of petitioner being on unauthorized leave without prior sanction or intimation.
In the decisions reported as Director General R.P.F. and Others Vs. Ch. Sai Babu, the Hon''ble Supreme Court recognized that while inflicting punishment past misconduct could be considered.
The plea that the appellate authority has not considered the appeal with fairness and with application of mind does not stand the scrutiny of the record produced at the hearing. As noted above, processing the appeal Shri J.P. Rai, General Manager penned a note dated 12.5.1993 which reads as under:
The note from page 8/N may kindly be seen. This is in reference to the appeal filed by Sh. Madan Lal against the penalty of removal from service. The appeal of Sh. Madan Lal is available at 64/C.
Sh. Madan Lal was charge sheeted for wilful absence from duty. Enquiry was held and charges were proved. The file was submitted to the then Managing Director for necessary orders. The Managing Director vide his minutes at page 45/C imposed the penalty of removal from service of Sh, Madan Lal, Jr. Salesman. Against the orders of the then Managing Director Sh. Madan Lal has filed the present appeal.
I had gone through the case and find that the penalty imposed upon Sh. Madan Lal is not commensurate with his guilt. No doubt Sh. Madan Lal was charge sheeted for major penalty but there are other penalties available under the head of Major Penalty which could be imposed upon Sh. Madan Lal. The penalties are:
Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have effect of postponing the future increments of his pay;
Reduction to lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government Servant to the time scale of pay, grade, post of service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post of service from which the government servant was reduced and his seniority and pay on such restoration to that grade, post or service;
Compulsory Retirement. Since Chairman is the appellate authority in the case the file is submitted before her for taking the decision.
(J.P. Rai)
General Manager
12.05.93
The said note was considered by the appellate authority i.e. the Chairman of the respondent Ms. A. Sood who penned a note dated 18.5.1993 as under:
We as a Corporation have to be viable commercially and do not have place to carry on the burden of people who are not interested in working. Please let me know what is his number of years of qualifying service.
A Sood
(Chairman)
18/5
Thereafter, the file was processed and a note was recorded that the petitioner had not attained qualifying service entitling him to a pension. Obviously, the appellate authority was considering the penalty of compulsory retirement which may have earned pensionary benefits for the petitioner. Since qualifying service was falling short it hardly matters whether the penalty imposed was of compulsory retirement or removal. Thus, it cannot be said that the appellate authority did not apply her mind to the appeal.
There is thus no merit in the petition. The Rule is discharged. The petition is dismissed. No costs.