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2002 DIGILAW 1665 (DEL)

PREM JUNEJA v. UNION OF INDIA

2002-11-01

MUKUL MUDGAL

body2002
ANIL DEV SINGH ( 1 ) THIS writ petition calls in question the judgment and order of the Central administrative Tribunal, Principal Bench, New Delhi, dated May 13, 2002 in O. A. No. 2351/2001. By that order the Central Administrative Tribunal rejected the challenges of the petitioner to the below mentioned communication/orders:- 1. Letter of the Assistant Commissioner, Kendriya Vidyalaya Sangathan, Jammu region, dated March 7, 2001, informing the petitioner that her request for extension of leave stood rejected vide memorandum dated October 4, 2000, that she had been unauthorisedly absenting herself from duty w. e. f, September 30, 2000, and that action for issuing a notice under Article 81 (d) of the Education code to her had already been mooted to Kendriya Vidyalaya Sangathan (for short kvs ) Headquarters; 2. The order of the Joint Commissioner (Administration), KVS, dated May 4, 2001 confirming the loss of lien of the petitioner on the post of Accounts Clerk and consequently treating her to have been removed from the service of the Kendriya vidyalaya Sangathan; and 3. The order dated June 12, 2001 issued by the Commissioner, Kendriya Vidyalaya sangathan, rejecting the appeal of the petitioner against the order of the Joint commissioner (Administration) dated May 4, 2001. ( 2 ) THE facts giving rise to the petition briefly stated are as follows:- THE petitioner was appointed as L. D. C. in the office of the Commissioner, kendriya Vidyalaya Sangathan (KVS), New Delhi. On September 22, 1999, the petitioner was transferred as Accounts Clerk in the office of the Assistant Commissioner, Kendriya vidyalaya Sangathan, Jammu. Pursuant to the transfer order, the petitioner took charge of the post of Accounts Clerk in the office of the Assistant Commissioner, KVS, Jammu. She applied for earned leave from August 14, 2000 to September 1, 2000. The leave was sanctioned by the competent authority. On September 1, 2000 the petitioner applied for extension of her leave up to September 29, 2000 due to domestic reasons. Thereafter on september 29, 2000 the petitioner again sought extension of leave up to October 25, 2000. On October 4, 2000, the Assistant Commissioner, KVS, informed the petitioner that her request for extension of leave was considered but the same could not be acceded to. The assistant Commissioner, KVS, therefore, directed the petitioner to join duty. Thereafter on september 29, 2000 the petitioner again sought extension of leave up to October 25, 2000. On October 4, 2000, the Assistant Commissioner, KVS, informed the petitioner that her request for extension of leave was considered but the same could not be acceded to. The assistant Commissioner, KVS, therefore, directed the petitioner to join duty. The petitioner, however, did not join duty but again requested on October 28, 2000 for sanction of her leave. It is not denied that the petitioner after expiry of her leave did not join duty at Jammu and on the contrary on January 8, 2001 requested the Commissioner, KVS, New Delhi, for transfer from Jammu on the ground, inter alia, that her husband was posted in Delhi and as per government instructions she could be considered for posting to the station where her husband was posted. It is the case of the petitioner that since her request dated January 8, 2001 was not considered she booked her ticket for Jammu by train for joining her duty on March 26, 2001. On March 7, 2001, the Assistant Commissioner, KVS, informed the petitioner that her request for extension of leave has been rejected vide memo dated October 4, 2000, that she had been willfully and unauthorisedly absenting herself w. e. f. September 30, 2000, and that consequently the proposal for issuing a notice under article 81 (d) of Education Code was sent to KVS (HQ), New Delhi. The communication dated March 7, 2001 reads as under :- " With reference to her application dated 17. 2. 2001 regarding extension of leave Mrs. Prem Juneja, Accounts Clerk of this office is hereby informed that her request for extension of leave has already been refused by this office memorandum of even number dated 4. 10. 2000. And now therefore, Mrs. Juneja is willfully absenting herself unauthorisedly w. e. f. 30. 9. 2000. Her case for issuing a notice under article 81 (d) has already been sent to KVS (HQ) New Delhi for taking further necessary action at their level. 10. 2000. And now therefore, Mrs. Juneja is willfully absenting herself unauthorisedly w. e. f. 30. 9. 2000. Her case for issuing a notice under article 81 (d) has already been sent to KVS (HQ) New Delhi for taking further necessary action at their level. " ( 3 ) IN pursuance of the communication dated March 7, 2001, a notice was issued to the petitioner under sub-clause (3) of clause (d) of Article 81 of the Education Code on march 13, 2001 whereby the petitioner was called upon to make a written representation within a period of ten days failing which she was to be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan as per provisions of Article 81 (d) of the education Code. This order dated March 13, 2001 reads as follows:- " Smt. Prem Juneja, Accounts Clerk, Kendriya Vidyalaya Sansthan, regional Office, Jammu, is hereby informed that she has remained absent for a period of fifteen days or more from 1. 1. 2001 onwards without sanctioned leave or beyond the period of leave originally granted or subsequently extended. Smt. Prem Juneja has neither reported for duty within the aforesaid period of fifteen calendar days nor satisfactorily explained the reasons for her absence in terms of sub-clause (1) of clause (d) of Article 81 of Education Code, she is deemed to have voluntarily abandoned her service and thereby provisionally lost lien on her post. As required under sub-clause (3) of clause (d) of Article 81, this order is hereby made recording the factum of voluntary abandonment of service by Smt. Prem Juneja and provisional loss of her lien on her post and the same is hereby communicated to her accordingly. xx xx xx smt. Prem Juneja may make written representation to the undersigned within 10 days of the receipt of this order failing which an order shall be passed confirming loss of lien on the post held by her and, in that case, she shall be deemed to have been removed from the service of the Kendiiya vidyalaya Sangathan as per provisions of Article 81 (d ). " ( 4 ) PURSUANT to the show cause notice, the petitioner made a representation on March 16, 2001 to the Disciplinary Authority, namely. Joint Commissioner (Admn), KVS. " ( 4 ) PURSUANT to the show cause notice, the petitioner made a representation on March 16, 2001 to the Disciplinary Authority, namely. Joint Commissioner (Admn), KVS. However, the Joint Commissioner, by his order dated May 4, 2001 under Article 81 (d) of the education Code for Kendriya Vidyalayas, confirmed the loss of lien on the post of Accounts clerk held by her and as such she was deemed to have been removed from the service of the kvs with immediate effect. The aforesaid order dated May 4, 2001 reads as follows: - whereas Smt. Prem Juneja, Accounts Clerk, Kendriya Vidyalaya sangathan, Regional Office, Jammu, remained absent without sanction of leave and in terms of Article 81 (d) (1) of Education Code for Kendriya Viyalayas she is deemed to have been voluntarily abandoned her service and thereby provisionally lost lien on her post. WHEREAS in terms of sub-clause (3) of Article 81 (d) of Education code for Kendriya Vidyalayas, an order communicating the voluntary abandonment of service by Smt. Prem Juneja and provisional loss of lien on her post, was issued to Smt. Prem Juneja, vide order dated 13. 3. 2001. WHEREAS the said Smt. Prem Juneja has made a representation to the undersigned against the aforesaid Show Cause Notice on 16. 3. 2001. AND WHEREAS on consideration of the said representation being a lady, her concern for the career of children could be appreciated during the examination days or a little earlier but her unauthorised absence w. e. f. 4,10,2000 does not have any genuine grounds. NOW, THEREFORE, the undersigned, being the Disciplinary authority, in terms of the provisions contained in Article 81 (d) of Education code for Kendriya Vidyalayas, hereby order to confirm the loss of lien on the post of Accounts Clerk held by Smt. Prem Juneja and as such she is deemed to have been removed from the services of Kendriya Vidyalaya Sangathan with immediate effect. " ( 5 ) AGGRIEVED by the order passed by the Joint Commissioner (Admn), KVS, the petitioner filed an appeal to the Commissioner, KVS, New Delhi. " ( 5 ) AGGRIEVED by the order passed by the Joint Commissioner (Admn), KVS, the petitioner filed an appeal to the Commissioner, KVS, New Delhi. The appeal did not find favour with the Commissioner, KVS, who accordingly dismissed the same with the following order dated July 12, 2001:- whereas Smt. Prem Juneja, Ex Accounts Clerk, Kendriya vidyalaya Sangathan (Regional Office), Jammu, was removed from service by the Joint Commissioner (Admn), KVS and Disciplinary Authority, vide order dated 04-05-2001, under the provisions of Article 81 (d) of Education Code. WHEREAS the said Smt. Prem Juneja has preferred an appeal against the impugned order of Disciplinary Authority to the Appellate Authority which has been considered by the undersigned being the Appellate Authority, vide clause 8 l (d) (10) of Education Code. AND WHEREAS based on consideration of the facts and circumstances of the case and contents in the Appeal and also the Personal hearing of the Appellant, the undersigned came to the irrevocable conclusion that there are no sufficient grounds to defer with the decision of the Disciplinary authority with regard to the removal of the applicant from service under the provisions of Article 81 (d) of Education Code. NOW THEREFORE the undersigned confirms the order dated 4-5- 2001 passed by the Disciplinary Authority and rejects the appeal preferred by smt. Prem Juneja. " ( 6 ) NOT satisfied with the aforesaid orders of the various authorities, the petitioner filed an O. A. being O. A. No. 2351 of 2001 before the Central Administrative Tribunal. As already pointed out, the O. A. was rejected by the Central Administrative Tribunal and the challenge to Article 81 (d) of the Education Code as also challenges to the orders dated March 12, 2001; May 4, 2001 and July 12, 2001 were rejected. The O. A. having been rejected, the petitioner has filed the instant writ petition. We have heard the learned counsel for the parties. ( 7 ) THE learned counsel for the petitioner submitted that Article 81 (d) of the education Code was violative of Articles 14 and 16 of the Constitution, It was also urged that Article 81 (d) of the Education Code and action taken against the petitioner thereunder run contrary to Article 311 of the Constitution. The learned counsel also submitted that the action taken against the petitioner is violative of the principles of natural justice. The learned counsel also submitted that the action taken against the petitioner is violative of the principles of natural justice. ( 8 ) ON the other hand, the learned counsel for the respondents submitted that Article 81 (d) of the Education Code does not infringe Articles 14 and 16 of the Constitution and suffers from no infirmity whatsoever. It was also contended that the impugned orders are not violative of Article 311 of the Constitution and in any case Article 311 is not applicable. It was, however, pointed out that CCS (CCA) Rules, 1965, have been made applicable. It was also pointed out that in exercise of powers conferred by Regulation 22 of the Memorandum and Rules of the Kendriya Vidyalaya Sangathan, the Board of Governors in its meeting held on July 17, 2000, inserted Article 81 (d) in the Education Code dealing with "voluntary abandonment of service". The learned counsel also submitted that there is no warrant for the submission of the counsel for the petitioner that the impugned orders were violative of the principles of natural justice. ( 9 ) WE have considered the submissions of the learned counsel for the parties. At the threshold we will deal with the submission of the learned counsel for the petitioner that article 81 (d) and action taken against the petitioner pursuant thereto run contrary to Article 311 of the Constitution. This submission is based on the assumption that Article 311 of the constitution applies to the employees of the Kendriya Vidyalaya Sangathan. There appears to be no justification for drawing such an assumption. It is not claimed that the employees of kvs are the employees of the Government of India Indubitably they are the employees of the Sangathan and the question of absence without leave is governed by the Education Code for Kendriya Vidyalayas. Therefore, the argument of the learned counsel for the petitioner that the impugned orders are contrary to Article 311 of the Constitution is of no avail to him as Article 311 does not apply to the employees of the Sangathan. No provision of the education Code or any memorandum issued by the Sangathan has been brought to our notice which makes Article 311 applicable to the employees of the Sangathan. Therefore, the submission of the learned counsel for the petitioner is rejected. No provision of the education Code or any memorandum issued by the Sangathan has been brought to our notice which makes Article 311 applicable to the employees of the Sangathan. Therefore, the submission of the learned counsel for the petitioner is rejected. ( 10 ) IT was next contended that Article 83 (d) of the Education Code is violative of articles 14 and 16 of the Constitution. In order to appreciate the submission, we consider it necessary to refer to Article 81 (d) of the Education Code. Article 81 (d) of the Education code provides as under :- " Article 81 (d), Voluntary abandonment of Service (1) If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lose his lien on his post unless :- (a) he returns within fifteen calender days of the commencement of the absence or the expiry of leave originally granted subsequently extended, as the case may be; and (b) satisfies the appointing authority that his absence or his inability to return on the expiry of the leave as the case may be was for reasons beyond his control. The employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose lien on his post. (2) An employee, who has provisionally lost lien on his post in terms of the aforesaid provisions, shall not be entitled to the pay and allowances or any other benefit after he has provisionally lost lien on his post; provided that payment of such pay and allowances will be regulated by such directions as the appointing authority may issue while ordering reinstatement of the employee in terms of Sub-clause 6) of this Article. (3) In cases falling under Sub-clause (1) of this Article, an order recording the factum of voluntary abandonment of service by the employee and provisional loss of his lien on the post, shall be made and communicated to the employee concerned at the address recorded in his service book and/or his last known address, to show cause why the provisional order above mentioned may not be confirmed. (4) The employee may make a written representation to the appointing authority, within ten days of receipt of the order made under sub-clause (3 ). (4) The employee may make a written representation to the appointing authority, within ten days of receipt of the order made under sub-clause (3 ). (5) The appointing authority may on receipt of the representation, if any, an perusal of materials available on record as also those submitted by the employee, grant, at his discretion, an oral hearing to the employee concerned to represent his case. (6) If the appointing authority is satisfied after such hearing that the employee concerned has voluntarily abandoned his service in terms of the provisions of Sub-clause (1) of this Article, he shall pass an order confirming the loss of employee s lien on his post, and, in that event, the employee concerned shall be deemed to have been removed from the service of the Kendriya Vidyalaya Sangathan with effect from the date of his remaining absent. In case the appointing authority is satisfied that the provisions of Sub-Clause (1) of Clause (d) of this Article are not attracted in the facts and circumstances of the case, he may order reinstatement of employee to the post last held by him, subject to such directions as he may give regarding the pay and allowances for the period or absence. (7) APPELLATE AUTHORITY: An employee aggrieved by an order- passed under sub-clause (6) of this Article may prefer an appeal to the appellate authority as notified by the Kendriya Vidyalaya Sangathan from time to time. (8) PERIOD OF LIMITATION FOR APPEALS; No appeal preferred under this Article shall be entertained unless it is preferred within a period of 45 days from the date on which a copy of the order appealed against is served on the appellant; provided that the Appellate Authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from not preferring the appeal in time. (9) FORM AND CONTENTS OF APPEAL: Form and contents of appeal shall mutatis mutandis be the same as prescribed under the CCS (CCA) rules 1965. (9) FORM AND CONTENTS OF APPEAL: Form and contents of appeal shall mutatis mutandis be the same as prescribed under the CCS (CCA) rules 1965. (10) CONSIDERATION OF APPEAL: The appellate authority shall consider: whether the requirements laid down under sub-clause (1), (3), (5) and (6) of this Article have been complied with and, if not, whether such non- compliance has resulted in failure of justice; and whether the order confirming loss of employee s lien on his post and his consequent removal from service is warranted on record; and pass order confirming modifying or setting aside the order passed under sub-clause (6) of this Article. (11) IMPLEMENTATION OF ORDER OF APPEAL: The appointing authority shall give effect to the order passed by the Appellate Authority. (12) FINALITY OF ORDER PASSED IN APPEAL: The order of the appellate Authority made under this Article shall be final and shall not be called in question by way of any farther application/petition for revision, review, etc. (13) APPLICABILITY OF THE CCS (CCA) RULES: In matters falling under this Article and in those matters alone, the procedure prescribed for holding inquiry in accordance with the CCS (Classification, Control and Appeal) Rules 1965 as applicable to the employees of the Kendriya vidyalaya Sangathan as also other provisions of the said rules which are not consistent with the provisions of this Article shall stand dispensed with. (14) REMOVAL OF DIFFICULTIES: Notwithstanding anything contained in any rule or order for the time being in force in KVS, the commissioner KVS may, with the approval of the Vice-Chairman, KVS issue such instructions as he may deem fit to remove difficulties in the implementation of these provisions. (15) POWER TO ISSUE INSTRUCTIONS: Without prejudice to the generality of the foregoing provisions, the Commissioner, Kendriya vidyalaya Sangathan may, with the approval of the Vice-Chairman, kendriya Vidyalaya Sangathan, issue, from time to time (whether by way of relaxation of the aforesaid provisions or otherwise) general or special orders as to the guidelines, principles or procedures to be followed in giving effect to the provisions of this Article. " a reading of the aforesaid Article 81 (d) leaves no manner of doubt that it does not suffer from any of the vices on the basis of which it has been attacked by the learned counsel for the petitioner. " a reading of the aforesaid Article 81 (d) leaves no manner of doubt that it does not suffer from any of the vices on the basis of which it has been attacked by the learned counsel for the petitioner. We are not impressed by the submission of the learned counsel for the petitioner that the aforesaid Article 81 (d) of the Education Code is violative of the equality clause. There is nothing in Article 81 (d) of the Education Code which makes it unjust, unfair and unreasonable. It is meant to deal with an unwarranted situation of absentism. Absentism is bane of public service. The erring employees have been taking advantage of the procedure and mocking at the system. Unauthorised absentism in offices is rampant. There are instances galore where the employees remained absent for several years and yet were able to successfully challenge the orders of their terminations. This had given undue advantage to the erring employees. They not only were able to get the orders of termination quashed or set aside, but they were also reinstated with full back wages. This situation cannot be allowed to prevail. The indiscipline must be curbed in order to infuse efficiency and discipline in the services. It was possibly in this view of the matter that Article 81 (d) of the Education Code was framed. ( 11 ) A rticle 81 (d) clearly makes a provision for providing an opportunity to an employee to show cause against the provisional view of the concerned authority that the employee has lost his or her lien on the post on the ground of his unauthorised absence from duty. Such an employee, who remained absent, can render his explanation. In case the disciplinary Authority rejects the explanation and passes an older confirming loss of lien on the post held by him or her and removing him from service, he or she can file an appeal before the Appellate Authority. The Supreme Court in Aligarh Muslim University and others v. Mansoor Ali Khan, 2000 (6) SCALE 125 , while dealing with Rule 5 (8) (i) of the aligarh Muslim University Revised Leave Rules, 1969, which rule is identical to Article 81 (d) of the Education Code, held as follows :- " 11. The Supreme Court in Aligarh Muslim University and others v. Mansoor Ali Khan, 2000 (6) SCALE 125 , while dealing with Rule 5 (8) (i) of the aligarh Muslim University Revised Leave Rules, 1969, which rule is identical to Article 81 (d) of the Education Code, held as follows :- " 11. It will be seen that Rule 5 (8) (i) applies to an employee who absents himself from duty without having previously obtained leave or where he has failed to return to his duties on the expiry of leave without having previously obtained further leave. Then Rules 5 (8) (i) refers to the manner in which the employee is to be given an opportunity. If the Appointing Authority regards the explanation as not satisfactory, the employee concerned shall be deemed to have vacated his post without notice, from the date of absence without leave. In the context of Rule 10 of the 1972 Rules, which deems vacation of Post if the absence was 5 years, it must follow that the above Rule 5 (8) (i) applies to absence for a period of less than 5 years. ( 12 ). Rule 5 (8) (ii) deals with a different situation. It relates to a case where such an officer is permitted to rejoin duty. It says that if he is so permitted, he will be entitled to no leave allowance or salary for the period of such absence and such period shall be debited against his leave account as leave without pay. The rule says that these consequences will not, however, follow if his leave is extended by the authority empowered to grant leave. Then in its latter part, Rule 5 (8) (ii) refers to another situation enabling disciplinary action to be taken treating unauthorised absence as misconduct. If a person has been absent without leave being sanctioned, he could be proceeded against for misconduct. 13. These are the different situations in which Rule 5 (8) (i) and (ii) apply. Point 1 is decided accordingly. Point 2: 14. Rule 10 (c) (i) (ii) of the 1972 Rules reads as follows: "rule 10; Employee absent from duty: (a ). . . . . . . . . . . (b ). . . . . . . . . . . . . Point 1 is decided accordingly. Point 2: 14. Rule 10 (c) (i) (ii) of the 1972 Rules reads as follows: "rule 10; Employee absent from duty: (a ). . . . . . . . . . . (b ). . . . . . . . . . . . . (c) (i) No permanent employee shall be granted leave of any kind for a continuous period of five years; (ii) When an employee does not resume duty after remaining on leave for a continuous period of five years, or whether an employee after the expiry of his leave remains absent from duty, otherwise than on foreign service or on account of suspension for any period which together with the period of the leave granted to him exceeds five years, he shall, unless the Executive Council in view of the exceptional circumstances of the case otherwise determine, be deemed to have resigned and shall accordingly cease to be in the University Service. " it will be seen that Rule 10 deals with a different aspect. Now Rule 10 (c) (i) states that no permanent employee shall be granted leave of any kind for a continuous period of more than 5 years. However, Rule 10 (c) (ii) states that when an employee does not resume duty after remaining on leave for a continuous period of 5 years, or where an employee - after the expiry of his leave - remains absent from duty (otherwise than on foreign service or on account of suspension) for any period which together with the period of the leave granted to him exceeds 5 years, - he shall, (unless theExecutive Council in view of the exceptional circumstances of the case otherwise determine), be deemed to have resigned and shall accordingly cease to be in the University service. This is the purport of Rule 10 (c ). Point 2 is decided accordingly. " ( 13 ) THUS, it is clear from the aforesaid decision that the Supreme Court did not find fault with the action of the University in resorting to Rule 5 (8) (i) of the Aligarh Muslim university Revised Leave Rules, 1969 where an employee failed to resume duty after the expiry of leave granted to him. He was deemed to have vacated his post from the date of his absence without leave by the University. He was deemed to have vacated his post from the date of his absence without leave by the University. Neither the said rule nor the action of the university thereunder was held to be violative of the principles of natural justice or any of the constitutional functions. Taking cue from the aforesaid judgment of the Supreme Court, it seems to us, that lime has come when effect must be given to rules like Article 81 (d) of the education Code so that the malady of absentism is remedied. Since Article 81 (d) of the education Code provides an opportunity to the employee to furnish his/her explanation in regard to the provisional view of the competent authority that the employee has lost his/her lien on the post on account of his/her absence from duty and a post decisional hearing in the form of an appeal is also provided, the challenge based on the violation of principles of natural justice does not hold water and stands neutralised. ( 14 ) IT is noteworthy that the Supreme Court in Aligarh Muslim University s case (supra) also rejected the challenge to the action taken against the appellant therein on the ground that no prejudice was caused to him for want of notice under Rule 5 (8) (i) of the aligarh Muslim University Revised Leave Rules, 1969. The question of prejudice in the instant case does not arise as the petitioner has not given any worthwhile explanation for her absence from duty. An opportunity was given to her by the Competent Authority to furnish her explanation by way of show cause notice under Article 81 (d) of the Education Code which opportunity was availed of. The exaplanation of the petitioner for her absence that she had family problems was considered by the Joint Commissioner before passing the order dated May 4, 2001. Any further opportunity to represent her case will not advance the principles of natural justice. ( 15 ) IT needs to be pointed out that the petitioner was absent from duty for a long period of rime. The Joint Commissioner, KVS, took a fair view of the matter on consideration of the representation of the petitioner in reply to the show cause notice. ( 15 ) IT needs to be pointed out that the petitioner was absent from duty for a long period of rime. The Joint Commissioner, KVS, took a fair view of the matter on consideration of the representation of the petitioner in reply to the show cause notice. This is evident from the following observations of the Joint Commissioner, KVS, contained in his order dated May 4, 2001: - " AND WHEREAS on consideration of the said representation being a lady, her concern for the career of children could be appreciated during the examination days or a little earlier but her unauthorised absence w. e. f. 4. 10. 2000 does not have any genuine grounds. " ( 16 ) WE do not find any violation of the principles of natural justice warranting our interference. ( 17 ) IN view of the aforesaid discussion, we do no find any merit in the writ petition. Accordingly, the same is dismissed.