P. P. Devika v. Union of India and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA WEDNESDAY, THE 30TH DAY OF MARCH 2016/10TH CHAITHRA, 1938 OP (CAT).No. 198 of 2015 (Z) ----------------------------- AGAINST THE ORDER/JUDGMENT IN OA180/00850/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 29-09-2015 PETITIONER(S)/APPLICANT: ----------------------- P.P.DEVIKA, W/O. SURESH COLOTH, JUNIOR MARKETING ASSISTANT (COMPULSORILY RETIRED), NATIONAL INSTITUTE OF FISHERIES POST HARVEST TECHNOLOGY AND TRAINING, KOCHI - 16, RESIDING AT LAKSHMI, XXXI-211-A, NELSON MANDELA, AKG ROAD, CHANGAMPUZHA NAGAR, KOCHI - 682 033. BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENT(S)/RESPONDENTS: -------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF AGRICULTURE, DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, NEW DELHI - 110 001. 2. THE JOINT SECRETARY (FY), DEPARTMENT OF ANIMAL HUSBANDRY, DAIRYING AND FISHERIES, MINISTRY OF AGRICULTURE, NEW DELHI - 110 001. 3. THE DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLGY AND TRAINING, KOCI-682016. 4. DR. S. GIRIJA, DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLGY AND TRAINING, KOCI-682016. 5. THE ACCOUNTS OFFICER, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLGY AND TRAINING, KOCI-682016. 6. THE DEPUTY DIRECTOR, NATIONAL INSTITUTE OF FISHERIES, POST HARVEST TECHNOLGY AND TRAINING, KOCI-682016. R1 & 2 BY ADV. SRI.M.A.VINOD, CGC R BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 30-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP (CAT).No. 198 of 2015 (Z) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------- P1-TRUE COPY OF THE O.A 180/00850/14 FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. P2-TRUE COPY OF THE STATEMENT FILED BY THE RESPONDENTS IN O.A 180/00850/14 P3-TRUE COPY OF THE ORDER DATED 29/09/2015 IN O.A 180/00850/14 RESPONDENT(S)' EXHIBITS NIL ----------------------- JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN & P.V.ASHA, JJ. ------------------------------O.P(CAT) NO.198 OF 2015 ---------------------------------Dated this the 30[th] March, 2016. ## JUDGMENT Surendra Mohan, J. The petitioner challenges the order dated 29.9.2015 of the Central Administrative Tribunal ('CAT' for short) in O.A.180/00850/2014 dismissing her challenge against an order by which she was compulsorily retired from service. 2. The petitioner was working as a Junior Marketing Assistant under the third respondent. She was proceeded against departmentaly alleging that she had unauthorisedly absented herself from duty for the period from 6.8.2012 to 24.3.2013. It was further alleged that she had gone abroad and travelled to Oman on 13.8.2012 without the permission of the competent authority, thus violating clause 5 of the NOC issued to her at the time of applying for Passport. It was OP(CAT)198/2015 2 alleged that she had given false statements to the authorities. A disciplinary enquiry was conducted. The enquiring authority on completion of the enquiry submitted a report finding that the charges levelled against the petitioner were proved beyond doubt. The disciplinary authority considered the enquiry report and passed an order imposing a penalty of compulsory retirement from service as per order dated 1.1.2014. The said order is Annexure A1 forming part of Ext.P1. The aggrieved petitioner had challenged Annexure A1 order before the Appellate Authority. The Appellate Authority considered the contentions of the petitioner and by Annexure A2 order dated 17.9.2014 confirmed the punishment that was imposed on the petitioner. Accordingly, the appeal was dismissed. The petitioner had filed the O.A No:180/00850/2014 before the CAT challenging Annexures A1 and A2. 3. According to the petitioner there was no element of misconduct in the charges levelled against the petitioner. It OP(CAT)198/2015 3 was also contended that the punishment imposed was shockingly disproportionate to the misconduct that was alleged against her. Therefore, it was contended that at least a lesser punishment should have been imposed. The application was contested by the respondents. According to them there was no violation of any statutory rules. The misconduct alleged against the petitioner was serious. She had absented herself from duty for a period of about seven months. She had left the country without obtaining prior permission. Both the charges have been proved beyond reasonable doubt. She had also made false statements before the authorities while applying for leave. Therefore, it was contended that the punishment imposed on her was fully justified. 4. The CAT considered the respective contentions of the parties and found that, there were no grounds to interfere with the proceedings initiated by the respondents or the punishment that was imposed on her. Accordingly, the O.A OP(CAT)198/2015 4 has been dismissed. The aggrieved petitioner is before us challenging Ext.P3 order of the CAT. 5. According to the counsel for the petitioner, the petitioner had initially applied for leave. The authorities had informed her that she could avail the leave for a period of two months. However, in view of the compelling circumstances in which the petitioner was placed, she had to leave the country. Absolutely no allegations have been levelled against the petitioner in the manner of discharge of her official duties. She has more than seven years of service left. In view of the above it is contended that the punishment imposed on the petitioner was grossly disproportionate and is liable to be interfered with. The counsel places reliance on the decision of the Apex Court in Chairman-Cum-Managing Director, Coal India Limited v. Mukul Kumar Choudhuri [(2009)15 SCC 620] in support of his contention. The decision of a learned Single Judge of this Court in Sobha S.N.v. State of Kerala [2015KHC 602] is also pressed into service. OP(CAT)198/2015 5 6. This original petition comes up before us for admission. We have heard the counsel for the petitioner at length. We have been taken through the records of the case. We have considered the contentions advanced before us anxiously. 7. It is worth noticing that, the petitioner had unauthorisedly absented herself from duty for the period from 6.8.2002 to 24.3.2013. It is stated that she had initially applied for leave. But her leave had not been sanctioned stating that she could avail the same after a period of two months. However, in spite of the above, she had absented from duty without being permitted by the authorities. She had also left the country, without getting permission from the respondents. It is stated that, while granting her an NOC for obtaining Passport it was specifically stipulated that she would not leave the country without obtaining permission from the Head of the Department. Therefore, she had violated not only the rules regarding absentation from duty but also the OP(CAT)198/2015 6 conditions subject to which the NOC was granted. There is another charge that she has submitted false information to the authorities and that she had suppressed material facts. It was proved at the enquiry that the petitioner had informed the respondent's office that she was hailing from Mahe and that in order to get the benefit of the quota for admission to professional Colleges her daughter had to pass from an educational institution at Mahe. For the purpose of getting the said benefit it was represented that she had shifted her daughter from Ernakulam to Mahe, for pursuing her studies in the 12[th] standard. In her application for child care leave dated 21.7.2012 for the period from 6.8.2012 to 24.3.2013 the very same reason was shown. It later turned out that the said reason was false and that her daughter had studied her plus one and plus two courses in the Al-Wadi-Al Kabir Indian School at Sultanate of Oman. The said fact was also proved at the enquiry. It had come out at the enquiry that the statement of the petitioner that she had shifted her daughter OP(CAT)198/2015 7 to Mahe was false and that she had been studying at Oman. She had taken leave to join her husband at Oman and she had left the country without the permission of the Head of the Department. She had proceeded to Oman in spite of the fact that, her leave application had not been sanctioned. In the above circumstances, the authorities had taken a very serious view of the conduct of the petitioner. We do not find any grounds to find fault with the authorities. We notice that, the disciplinary authority as well as the Appellate Authority have considered the issues in the proper perspective. The petitioner has only been compulsorily retired from service. We are not satisfied that the said punishment is “shockingly disproportionate” as contended by the counsel for the petitioner. The CAT has also considered the various contentions of the petitioner, elaboratley and properly in Ext.P3. Therefore we do not find any grounds to interfere with the same. 8. The counsel for the petitioner has placed reliance on OP(CAT)198/2015 8 the decision in Chairman-Cum-Managing Director, Coal India Ltd v. Mukul Kumar Choudhuri (supra) particularly paragraphs 19 & 20. The said paragraphs read as follows:- “19. The doctrine of proportionality is, thus, wellrecognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.” Applying the test mentioned above to the facts of the present case, it cannot be said that the conduct of the petitioner has been visited with a punishment that is disproportionate to the OP(CAT)198/2015 9 gravity thereof. The employer in the present case has behaved in the manner that a reasonable employer is expected to behave in like circumstances. The conduct of the petitioner for which a punishment of dismissal could have been imposed, has been given only a lesser punishment. We do not find any grounds to interfere with the same. We are not satisfied that the decision of the learned Single Judge on which reliance has been placed has any application to the facts of the present case. For the foregoing reasons the original petition is dismissed. Sd/K. SURENDRA MOHAN Judge Sd/P.V.ASHA Judge jj /True copy/ OP(CAT)198/2015 10