W.P.(C) No. 30776 of 2009 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **TUESDAY, THE 31ST DAY OF JANUARY 2012/11TH MAGHA,1933** ## **WPC.No. 30776 of 2009 (Z)** ## **------------------------OA.NO.113/2008 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH ---------------------------------** ## **PETITIONER(S):** ## **------------------------** **1. THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM.** **2. THE SENIOR DY.ACCOUNTANT GENERAL (ADMIN), OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM.** **3. C.V.SUSANNA, SENIOR ACCOUNTS OFFICER (RETIRED), O/O.ACCOUNTANT GENERAL (A&E), BRANCH OFFICE, THRISSUR.** **4. THE UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, CENTRAL SECRETARIAT, NEW DELHI.** ## **BY ADVS.SRI.P.NANDAKUMAR, SC, IA & AD SRI.V.V.ASHOKAN,SC,IA & AD-INDIAN AUDI** ## **RESPONDENT(S):** **--------------------------** **1 P.BALAKRISHNAN, (NO.3 CLERK /TYPIST, OFFICE OF THE A.G.(A & E), KERALA THIRUVANANTHAPURAM.NOW RESIDING AT T.C.8/957 (OPPOSITE TO PETROL PUMP), ARAYALLOOR, THIRUMALA.P.O., PIN-695 006,THIRUVANANTHAPURAM.** **BY ADV. SRI.K.K.MOHAMED RAVUF SRI.P.C.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-01-2012, THE COURT ON 31/01/2012 DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.30776/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**P1**|**COPY OF THE O.A FILED BY THE RESPONDENT ALONG WITH THE ANNEXURES**| |---|---| |**P2**|**COPY OF THE REPLY STATEMENT**| |**P3**|**COPY OF THE REJOINDER FILED BY THE APPLICANT.**| |**P4**|**COPY OF THE ORDER DATED 6/3/2009 OF THE TRIBUNAL.**| |**RESPONDENT'S EXHIBITS:**<br>**NIL**|| ||**/TRUE COPY/**| **P.A.TO.JUDGE** **sts** ## **THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ.** ----------------------------------- W.P(C).No.30776 of 2009 -----------------------------------Dated this the 31[st] day of January, 2012 ## **JUDGMENT** ## Thottathil B.Radhakrishnan,J. - 1.The establishment challenges a decision of the Central Administrative Tribunal setting aside the penalty order and the appellate order in the disciplinary proceedings against the respondent, the employee. - 2.Heard the learned counsel for the establishment and for the employee. - 3.The solitary Article of Charge against the employee was that, while working as clerk/typist in the office of the Accountant General (A&E), in the branch office at Thrissur, he absented himself from duty from 1.10.1997 onwards violating the provisions of paragraph 3.2 of the Manual of General Procedure of the Office and thus showed lack of devotion to WPC.30776/09 2 duty and behaved in a manner unbecoming of a government servant, thereby violating the provisions of Rules 3(1)(ii) & 3 (1)(iii) of the Central Civil Services (Conduct) Rules, 1964, for short, the ‘Rules’. The statement of the imputations are to the effect that he absented himself from duty unauthorizedly from 1.10.1997 and did not respond to the directions issued on 12.2.1998, 20.4.1998 and 5.6.1998, when he was also informed that his application for leave has not been sanctioned. It is alleged that he chose to continue on unauthorised absence and submitted an application on 15.6.1998 for EOL on ground of illness and two other applications were also submitted by him for EOL on the same ground on 30.7.1998 and on 9.11.1998. It is alleged that though he was directed on 18.11.1998, to report before the District Medical Officer, Thrissur, for medical examination, he did not turn up. Though again called upon on 27.9.1999, to join duty within 15 days, he failed to do so. He also did not respond to another memo dated 17.2.2000, calling upon him to appear before the Medical Board. It was on this premise that it WPC.30776/09 3 was alleged that the government servant concerned showed lack of devotion to duty and he behaved in a manner unbecoming of a government servant, thus violating Rules 3(1) (ii) & 3(1)(iii) of the Rules. The employee was imposed the penalty of reduction to the lower stage of pay for a period of three years with the consequence of his not earning increments during the said period of three years and on the expiry of the period of reduction, the reduction will have the effect of postponing future increments of his pay. His appeal to the appellate authority did not succeed. 4. The employee went to the Tribunal challenging the penalty order and the appellate order. He impeached the conclusion of the enquiry officer that the charge against him has been partially proved. He also contended that the enquiry officer had ignored vital evidence such as the medical certificate issued by a qualified medical practitioner and by the Medical Board. WPC.30776/09 4 5.The Tribunal, on elaborate consideration of the relevant rules and the contents of the enquiry report vis.a.vis. the materials on record, found that the enquiry report was quite unsustainable, being self-contradictory and one unfounded on its own reasoning. As a consequence, the penalty was also found to be illegal. Accordingly, the Tribunal quashed the entire proceedings against the employee. The establishment is aggrieved by this. - 6.Relying on the judgment of the Apex Court in **State of Punjab** - v. **Dr.P.L.Singla** [2008(3) KHC 968 (SC)] and of this Court in **U.Mohammed** v. **State of Kerala & Others** [2007(3) KHC 248], it was argued by the learned counsel for the establishment that leave is not a matter of right and unauthorised absence is indiscipline and where an employee, who is unauthorisedly absent, does not report back to duty and offer any satisfactory explanation, or where explanation offered by the employee is not satisfactory, the employer can take recourse to disciplinary action in regard to the WPC.30776/09 5 unauthorised absence. Overstay after the expiry of leave granted is, by itself, a misconduct and imposition of punishment need not be interfered with, it is argued. The sequence of events as discernible from the enquiry file was relied on, to point out that it was not a case where the enquiry authority had acted without materials on record or of an instance of perversity in appreciating the materials on record. The establishment's learned counsel, thus attempted to forcefully justify that the Tribunal exceeded its jurisdiction in interfering with the disciplinary proceedings. He also argued that the penalty imposed cannot be treated as excessive in terms of laid down standards. Thereby, according to him, the impugned order is liable to be set aside by this Court. - 7.Per contra, learned counsel for the employee argued, among other things, that assimilating the entire materials, the Tribunal has come to the clear finding that the enquiry authority had reached conflicting views and the inconsistency in the findings of the enquiry authority was, by itself, WPC.30776/09 6 sufficient enough to interfere with the enquiry report and the consequential order of punishment. It is pointed out that the contradictions in findings by the enquiry officer are such that they go to the root of the matter and the Tribunal was justified in interfering with the impugned direction of the establishment. He said that the establishment's appellate order is cryptic and wholly unreasonable and perverse. Learned counsel, relying on the Full Bench decision of this Court in **Anilkumar** v. **State of Kerala** [2009(3) KLT 650], argued that even in exercise of powers under Articles 226 and 227 of the Constitution, this Court is within jurisdiction and discretion not to quash an order if it would result in resurrection of an illegal order. So saying, he argued that the sequence of events and the material evidence in the enquiry categorically point only to the innocence of the delinquent which is, in fact, the conclusion of the enquiry authority also. - 8.On the basis of the arguments, we again read the article of charge and the statement of imputations of misconduct and WPC.30776/09 7 misbehaviour in support of the Article of charge framed against the delinquent officer, which we had noted in paragraph No.3 above. 9.Now, adverting to the enquiry report, it can be seen that even according to the enquiry officer, in view of the medical evidence on record, including the certificate of the Medical Board which examined the chargesheeted officer on 23.3.2000, it has to be taken that the reason for the absence of the chargesheeted officer has to be considered as genuine. This is one among the conclusions arrived at by the enquiry officer. The medical certificates and medical records show that the officer, who was just 29 years of age at that time, while working in Thrissur, was referred from a hospital in Thrissur to the Sree Chithira Thirunal Institute for Medical Sciences and Technology, Trivandrum. He was diagnosed with IVC, Bilateral Common Iliac Vein Thrombosis. This event was in 1996. Thereafter, it appears that he was under continuous medication and care, including in the Sree Chithira Thirunal WPC.30776/09 8 Institute for Medical Sciences and Technology, Trivandrum, even in 2003. Even when he reported for duty in March, 2000, the Medical Board certified that he is temporarily unfit to rejoin duty till the deep vein is checked by Doppler study for review after three months with the report of Doppler study. On 17.6.2002, he was again subjected to medical examination and then it was found that he is having respiratory diseases and the same has now been subsided to some extent. The materials on record clearly showed to the satisfaction of the enquiry officer that the absence from office was on genuine medical grounds. 10. In so far as leave is concerned, the enquiry authority had opined that generally, leave on medical grounds supported by medical certificate is not applied for in advance, however that, such leave applications are either sanctioned or finally referred to for second medical examination by the Medical Board. In the case in hand, as noted by the enquiry authority, the department did not sanction the leave or take action at the WPC.30776/09 9 appropriate time to refer the chargesheeted officer for second medical examination during the period of absence from 15.6.1998 to 3.12.1999. The enquiry authority had found that as such, there is no reason to consider the absence of the chargesheeted officer during that period as unjustified or unauthorised. However, the enquiry authority said that the documentary evidence leads to conclude that the charge in the Article of charges has been partially proved! 11. Referring to paragraphs 13 to 16 of the impugned order of the Tribunal, it can be clearly seen that the Tribunal applied its mind on the process of evaluation of the materials by the enquiry authority and found that the enquiry authority had, in fact, concluded that there is no reason to consider absence of the chargesheeted officer during the period in question as unjustified or unauthorised. As rightly noticed by the learned Tribunal, there is clear conflict of conclusions by the enquiry authority. The Tribunal called such conflict as perverse. We may say that there was no situation for a conflict at all. The WPC.30776/09 10 clear conclusion of the enquiry authority is that there is no question of any unauthorised or unjustified absence by the chargesheeted officer. We say so because though the Manual of General Procedures of the office could have paved way for taking disciplinary action, the fact of the matter remains that the leave applications of the officer with medical certificates lay, without consideration, at any rate, without rejection. Therefore, though the enquiry officer stated in the last sentence of the report that the charge is partially proved, that does not reflect the clear finding of the enquiry authority; which is categoric, to the effect that the chargesheeted officer is not guilty on any ground of charge against him as contained in the Article. - 12.As already noticed, the charge framed in the Article is of violation of Rules 3(1)(ii) & 3(1)(iii) of the Rules. They are the general provisions which require that every Government servant shall, at times, maintain absolute integrity and do nothing which is unbecoming of a Government servant. In the WPC.30776/09 11 totality of the facts and circumstances, the records of the illness of the chargesheeted officer, which stand proved by the medical evidence on record, categorically showed to the satisfaction of the Tribunal that the impugned penalty order and the appellate order do not stand and that the enquiry authority's report did not generate any ground to impose punishment. 13. Having gone through the entire materials on record, we do not find any reason to disagree with the views of the learned Tribunal, warranting exercise of authority under Articles 226 or 227 of the Constitution of India. In the result, the writ petition is dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- C.T.RAVIKUMAR, Judge. kkb.