1 98010 vgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 980 OF 2010 Abha Chawla Mohanty, ] Indian Inhabitant, aged 49 years, ] Residing at C/o. 1504, Rushabh Towers, ] JB Road, Sewri, ] Mumbai 400 015 ] ...Petitioner Versus 1. The Oriental Insurance Co. Ltd., ] having its registered office at New Delhi, ] A 25/27 Asafali Road, New Delhi 110 002 ] And Divisional Office No. 6 at Ballard Estate ] And Regional Office at 7, J. Tata Road, Churchgate, ] Mumbai ] 2. Dilip Dhar ] The General Manager (Personnel), ] the Oriental Insurance ] Co. Ltd., having its registered office ] at Oriental House, ] PO Box No. 7037, 25/27 Asafali Road, ] New Delhi 110 002 ] 3. M Ramadoss ] the Chairman, the Oriental Insurance Co. Ltd., ] having its registered office at Oriental House, ] PO Box No. 7037, ] A-25/27 Asafali Road, New Delhi 110 002 ] 2 98010 4. PK Jha ] the General Manager (Estate & Establishment) ] & Central Public Information Officer, ] Oriental Insurance Co. Ltd., ] A-25/27 Asafali Road, ] New Delhi 110 002 ] having its Regional Office at ] Mumbai Regional Office No. 1 ] having HO at A-25/27 Asafali Road, ] New Delhi ] And Oriental House 7 J Tata Road, Churchgate, ] Mumbai ] 5. Govind Rajan ] The Estate Officer Regional Office I, ] Oriental Insurance Co. Ltd., 7 J Tata Road, ] Churchgate, Mumbai ] ...Respondents The Petitioner, in person Mr. A.G. Kothari for Respondent No. 1 CORAM: A.M. KHANWILKAR AND MRS. MRIDULA BHATKAR, JJ. DATE: NOVEMBER 15, 2011 JUDGMENT: (PER A.M. KHANWILKAR, J.) This Writ Petition under Article 226 of the Constitution of India takes exception to the Charge-sheet dated 8th March, 2004 and 3 98010 Addendum to Charge-sheet dated 8th November, 2004, as well as the Order of Penalty dated 18th May, 2006 passed by the Competent Authority and the Order dated 28th June, 2007 passed by the Appellate Authority. In substance, the challenge is to the action taken against the petitioner on the basis of the opinion recorded in the departmental proceedings initiated against the petitioner, which culminated in her removal from service. As a consequential relief, the petitioner prays for issuance of writ against the respondents, directing them to reinstate her with full back-wages and continuity of service with all incidental benefits with effect from 18th May, 2006. In addition, the petitioner is praying for damages and compensation for personal loss caused to her due to unlawful dispossession of the petitioner and her family members from the official service quarters. 2. Briefly stated, the petitioner was appointed in the Divisional Office No. 4 of Oriental Insurance Co. Ltd. (hereinafter referred to as “the Company”) in the month of October, 1985, upon being selected in the All India Examination for the Post of Assistant Administrative Officer. The petitioner was assigned to the Technical Department. When the departmental action against the petitioner was initiated pursuant to Articles of Charge framed against her dated 8th March, 2004, she was working as 4 98010 Assistant Manager and was posted at M.C.D.O. VI. The Articles of Charge dated 8th March, 2004 read thus:- “ARTICLES OF CHARGES FRAMED AGAINST MRS. ABHA C. MOHANTY, ASST. MANAGER, MCDO 6 Mrs. Abha C. Mohanty, Asst. Manger while posted at M.C.D.O. 6, has committed the following acts of misconduct during the years 2002, 2003 and 2004. Mrs. Abha C. Mohanty is highly irregular in her attendance, remaining absent for several days although no admissible leave was due to her, during the years 2002 to 2004 and she has not submitted leave applications for the same in spite of several letters issued to her. She had also not submitted Medical Certificate for her Maternity Leave. On many days, she used to attend office only for a few hours / minutes and also to come to office late and leave office early at any time of her choice without taking permission. In the past also, a Disciplinary Action was initiated against her for not submitting leave applications and not refunding excess Travelling Advance drawn by her vide Chargesheet dated 05.07.2000. But Competent Authority had taken a lenient view of the matter. Mrs. Abha C. Mohanty, thus committed the misconduct of wilful unauthorised absence for a very long period during the year 2002, 2003 and 2004, disobeyed the lawful and reasonable order of her superiors, has not maintained devotion to duty, exhibited conduct which is unbecoming of public servant, indulged in wilful insubordination and disobedience, remained absent without leave and without submitting leave applications and Medical Certificates for Maternity Leave, without sufficient grounds and satisfactory explanation committed an act which is subversive of discipline or of good behaviour, all in contravention of Rules 3 (ii) (iii) (iv), 4(7), (8) (17) and (20) read with Rule 18 of the General Insurance Conduct Discipline and Appeal Rules, 1975. PLACE: MUBAI Sd/- (B.C. SHAH) DATE: 08.03.2004 ASST. GENERAL MANAGER & DISCIPLINARY AUTHORITY ” 5 98010 3. The said Articles of Charge were accompanied by Statement of Imputation of Misconduct / Misbehaviour in support thereof. The same reads thus:- “STATEMENT OF IMPUTATION OF MISCONDUCT IN SUPPORT OF ARTICLES OF CHARGE AGAINST MRS. ABHA C. MOHANTY, ASSISTANT MANAGER, MCDO 6 -------------------------------------------------------------------------------- Mrs. Abha C. Mohanty, Asst. Manager while posted at M.C.D.O. 6, has committed the following acts of misconduct during the years 2002, 2003 and 2004. During the years 2002 to 2004 she has remained absent for several days although no admissible leave was due to her and she has not submitted leave applications for the same inspite of several letters issued to her. On many days, she used to attend office only for a few hours / minutes and also to come to office late and leave office early at any time of her choice without taking permission. From January 2003 to March, 2003 she has remained unauthorisedly absent from office. From 2nd March, 2003, she applied for Maternity Leave and remained absent till 15th October, 2003 without submitting any Medical Certificate. She again remained absent from 17.10.2003 till date without any sanction and / or intimation. Inspite of several letters addressed to her she has neither improved her attendance nor submitted leave applications. In the past also, a Disciplinary Action was initiated against her for not submitting leave applications and not refunding excess Travelling Advance drawn by her vide Chargesheet dated 05.07.2000. But Competent Authority had taken a lenient view of the matter and she was cautioned to be careful in future in adhering to the rules and regulations of the Company vide Order dated 17.01.2001. In this connection, reference is made to the following Rules of the General Insurance (CDA) Rules 1975. 6 98010 Rule 3: General (1) Every employee shall at all times: (ii) maintain devotion to duty and; (iii) do nothing which is unbecoming of a public servant; (iv) conform to and abide by these Rules and shall observe, comply with and obey all orders and directions which may, from time to time, be given to him, in the course of his official duties by any persons under whose jurisdiction, superintendence or control he may, for the time being, be placed. Rule 4: Misconduct Without prejudice to the term “Misconduct” the following acts of omission and or commission shall be treated as misconduct: (7) Absence without leave or overstaying the sanctioned leave for more than four consecutive days without sufficient grounds or proper or satisfactory explanation. (8) Habitual late or irregular attendance. (17) Absence from the employee’s appointed place of work without permission or sufficient cause. (20) Commission of any act subversive of discipline or of good behaviour. Rule 18: Employee not to be absent from duty without permission or be late in attendance. (1) An employee shall not absent himself from his duties without having obtained the permission of the Competent Authority nor shall he absent himself in case of sickness or accident without submitting a medical certificate satisfactory to the Competent Authority. Provided that in case of an emergency an employee may be allowed to avail one day’s casual leave without prior sanction subject to the condition that the Competent Authority is promptly advised of the circumstances in which prior sanction could not be obtained. (2) An employee who absents himself from duty without leave or overstays his leave shall not be entitled to draw any pay or allowances during such absence or overstayal and shall be further 7 98010 liable to such disciplinary measures as the Competent Authority may deem necessary. Provided however, that the Competent Authority may treat such period of absence or overstayal if not followed by termination of service, as period spent on Casual Leave, Earned Leave, Sick Leave or Leave on Loss of Pay, but the employee shall not be entitled as of right to such treatment. Provided further that the Competent Authority may treat such absence or overstayal as period spent on leave on loss of pay, irrespective of whether the employee has any other leave to his credit or not. Mrs. A.C. Mohanty, thus committed the misconduct of wilful unauthorised absence for a very long period during the years 2002, 2003 and 2004, disobeyed the lawful and reasonable order of her superiors, has not maintained devotion to duty, exhibited conduct which is unbecoming of a public servant, indulged in wilful insubordination and disobedience, remained absent without leave and without submitting leave applications and Medical Certificate for Maternity Leave, without sufficient grounds and satisfactory explanation, committed an act which is subversive of discipline or of good behaviour, as per / in contravention of Rule 3 (ii)(iii)(iv), 4(7) (8) (17) (20) read with Rule 18 of the General Insurance (CDA) Rules, 1975. PLACE: MUBAI Sd/- (B.C. SHAH) DATE: 08.03.2004 ASST. GENERAL MANAGER & DISCIPLINARY AUTHORITY ANNEXURE III MRS.ABHA C. MOHANTY, ASST. MANAGER, MCDO 6 LIST OF DOCUMENTS 1. Attendance Register 2. File containing various letters written to her. 8 98010 ANNEXURE-IV LIST OF WITNESSES: 1. Ms. P. Narayanan, Asst. Admn. Officer, MCDO 6 2. Ms. D. Sandhya, Asst. Admn. Officer, MCDO 6 PLACE: MUBAI Sd/- (B.C. SHAH) DATE: 08.03.2004 ASST. GENERAL MANAGER & DISCIPLINARY AUTHORITY” 4. Later on, the petitioner was served with a letter purportedly to be Addendum to charge-sheet dated 8th March, 2004. The same reads thus: “EXHIBIT ‘M’ THE ORIENTAL COMPANY LIMITED (Subsidiary of General Insurance Corporation of India) Mumbai Regional Office No.2, Oriental House, 7th Floor, 7, Jamshedji Tata Road, Mumbai 00 020, Tel.No.2852660/2661/2663/2664 Gram : OFGINSWEST Fax: 2852595, 2840001 Date : 8th November, 2004. PERSONNEL DEPT Regd.A.D. By U.C.P. Courier Service Mrs.A.C.Mohanty 304, Adarsh Apartment B.D.Ambedkar Marg, Near Bombay Dying -Spring Mill Compound, Naigaon, Dadar (E), Mumbai 400 014. 9 98010 Madam, RE :Addendum to Charge-Sheet dated 8th March, 2004 issued by Disciplinary Authority, A.G.M. MRO II under rule 25 of General Insurance CDA Rules. -------------------------------------------------------------------------------- We refer to the Charge Sheet dated 8th March, 2004 issued to you by Disciplinary Authority of MRO II for initiating Departmental Enquiry against you under rule 25 of General Insurance CDA Rules, 1975. We have received your Interim Reply dated 29th March, 2004 to the above referred Charge Sheet. Your Final Reply is still awaited. In case you want to send your Final Reply, if any, the same should be sent to us immediately. Please refer to Annexure III of the above referred Charge Sheet enclosing therewith a file containing various letters addressed to you. In some of the letters addressed to you, specific time span against some dates has been mentioned during which time you were present in the Office. This means that for rest of the time on that particular date, you were absent from the Office. For all such dates against which specific time span has been mentioned in various letters. You were absent for the full day, and accordingly, you are supposed to submit Leave Application for the full day, which please note. Further, you have not attended Office continuously since April, 2004, nor have intimated to the Office the reasons for your absence. Please note absence from Office without prior permission is teated as `Un-authorized absence’ under CDA rules. We enclose herewith copy of letter dated 1st September, 2004 addressed to you by your MCDO 6 Mumbai. As a matter of natural justice, we again give you an opportunity to submit your Final Reply within 15 days from the date of receipt of this letter, before further action is initiated in this matter. Thanking you, Yours faithfully, ASST.GENERAL MANAGER AND DISCIPLINARY AUTHORITY” 10 98010 5. The petitioner filed her reply and contested the charges framed against her. According to the petitioner, the charges were trumped up at the behest of her superiors, who were not on good terms with her. The petitioner denied the charges, and claimed that the same were founded on tampered registers / official documents. The petitioner asserted that the Articles of Charge were vague. The petitioner demanded certain documents, which, according to her, were relevant documents, and only upon receipt thereof, she would be in a position to file a meaningful reply to counter the charges framed against her. Besides filing written reply, the petitioner initially participated in the enquiry proceedings conducted by the Enquiry Officer appointed for that purpose. The petitioner made application before the Enquiry Officer to allow her to be represented by N.R Mohanty (her husband) as her defence assistant. However, that request was not acceded to and she was left with no other choice but to defend the departmental proceedings on her own. She participated in the enquiry proceedings until 20th September, 2005, but walked out of those proceedings on the ground that the enquiry was not being conducted in a fair manner. The Enquiry Officer, however, proceeded with the enquiry 11 98010 ex parte against the petitioner. The Management produced documentary as well as oral evidence in support of the charges framed against the petitioner. 6. The Enquiry Officer, on analysing the said evidence produced by the Management, found that the charges as framed against the petitioner are established. The Enquiry Officer, in his report dated 20th January, 2006, in the first place, adverted to the Management’s case and the charges framed against the petitioner. He then referred to the documentary evidence produced by the Management, which were in the form of letters issued to the petitioner and the surprise inspection reports given by a team of senior officials of M.R.O. - I and II. The Enquiry Officer also noted that the Management examined witness Ms. P. Narayan, Assistant Administrator, MCDO-IV to substantiate the charges framed against the petitioner. The Enquiry Officer noted that the charge framed against the petitioner was in respect of violation of Rules 3, 4 and 18 of the General Insurance CDA Rules, 1975. 7. The Enquiry Officer then referred to the defence case as noted in the interim and final replies filed by the petitioner and various written communications, wherein the petitioner denied all the charges levelled 12 98010 against her. The Enquiry Officer then referred to the request of the petitioner to provide her defence assistance, N.R Mohanty (husband of the petitioner). He observed that, at the relevant time, the said N.R Mohanty had become ex-employee and was not in service of respondent No. 1- Company. For that reason, as per the rules, he was ineligible to espouse the cause of the petitioner. For, the rules provide that only an employee who is working in the Company within the region can act as the defence assistant. The Enquiry Officer then referred to the request of the petitioner to furnish Internal Audit Reports and Vigilance Check Reports for MCDO-VI for years 2000 to 2004, leave positions as per Self Appraisal Report, part of Confidential Report for years 1999/2000 to 2003/2004, leave record in the prescribed format for years 1999 to 2004, Attendance Registers for the period from 2000 to 8th March, 2004 and copies / clarification of A.A. Hallary. The Enquiry Officer has also noted that the petitioner has tried to defend herself mainly on the ground that the proposed departmental enquiry was initiated against her at the behest of R.C. Shah, who was Manager and superior of the petitioner at the relevant time, as the petitioner had repudiated the docket of his sister, Lata Shah. The Enquiry Officer has noted that the petitioner was provided with the leave records for years 2002 to 2005 and photo-copy of the relevant extract of Daily Attendance 13 98010 Registers for years 2002 to 2004 as maintained in the D.O. The petitioner was also provided a set of 39 letters, which formed part of Annexure 3 of the charge-sheet. He noted that the said communications, in particular, letter dated 22nd August, 2005, confirmed the stand of the Department that the petitioner had received the communications. The Enquiry Officer noted that other documents demanded by the petitioner were irrelevant and unwarranted qua the charges framed against the petitioner. 8. After having analysed the material on record, the Inquiry Officer proceeded to record his findings and conclusion. For considering the grounds of challenge raised in this petition, we deem it appropriate to reproduce the same hereunder: “Findings:Whenever the CSO absented from the office, she has not supported or given any proof that she informed the office either orally/writing and availed of the leave, i.e. She was absent without any authorization. This continued over a period of 3 years. There were 3 different DO I/Cs and all of them were biased against her is unbelievable. More so, the daily attendance which was not a secret one and all the staff and officers have access to the same. There is no record of any representation/protest from CSO on wrong making of absent/late in the register. The case is supported by the fact that the prosecution witness and as per the practice prevailing in the DO if any one is marked late/absent or any innocent mistake in the leave record, is pointed out/represented is incorrect the same is immediately examined and if found correct is rectified. There is not even a single written representation/protest to that effect by the CSO. Thus, this proves 14 98010 that Incharges were not biased against CSO. It can be safely concluded that charge of unauthorized absence from the office is established i.e. CSO never obtained prior approval for her absence from the office. This is further supported by the facts that there are three surprise inspector reports of independent team consisting officials of both RO’s dated 25.11.2002, 27.11.2001 and 10.12.2002. There is enough correspondence on record which proves that she was communicated her absence and was asked to submit the leave applications which she has failed to do that proves that the CSO disobeyed the written orders/instructions of the office. In light of the above, the charge that CSO has committed the act of misconduct – absented from the office, habitual later coming/irregular in attendance, absence from the employee appointed place of work without permission. Thus she has willfully unauthorizedly absented herself for a very long period during the period of 3 years i.e. 2002, 2003 & 2004. and has exhibited the conduct of disobedience and remained absent without submitting leave applications and has not even given any satisfactory explanation for such acts of commission by the CSO. Conclusion: - Thus in light of the foregoing, the undersigned concludes that charges leveled against the CSO are proved.” 9. On the basis of the findings recorded by the Enquiry Officer, the matter was examined by the General Manager and Competent Authority. The Competent Authority agreed with the opinion recorded by the Enquiry Officer. The Competent Authority noted that the charges proved against the petitioner were grave in nature. Accordingly, the Competent Authority, vide order dated May 18, 2006, not only upheld the opinion of the Enquiry Officer but proceeded to impose penalty on the petitioner of removal from the services of the Company, which shall not be disqualification for future employment. We deem it appropriate to 15 98010 reproduce the order of the Competent Authority dated May 18, 2006. The same reads thus:- “Deptt.: Personnel ORDER May 18, 2006 Ref.No.: HO/Pers/CDA/932 WHEREAS Major Penalty Proceedings in terms of Rule 25 of GI [CDA] Rules, 1975 were initiated against Ms Abha C Mohanty, Dy. Manger, vide Charge Sheet dated 08.03.2004 for, while posted at MDO 6, having committed the following acts of misconduct during the years 2002, 2003 & 2004: “Ms Mohanty is highly irregular in her attendance, remaining absent for several days although no admissible leave was due to her, during the years 2002 to 2004 and she has not submitted leave applications for the same in spite of several letters issued to her. She had also not submitted Medical Certificate for her Maternity Leave. On many days, she used to attend office only for a few hours / minutes and also to come to office late and leave office early at any time of her choice without taking permission. In the past also, a disciplinary action was initiated against her for not submitting leave applications and not refunding excess Travelling Advance drawn by her vide Chargesheet dated 05.07.2000. But Competent Authority had taken a lenient view of the matter”. AND WHEREAS Departmental Enquiry was held, Ms. Mohanty left the Enquiry Proceedings on 20.09.2005 and did not participate in the proceedings. Shri N K Saluja, Enquiry Officer has given his findings vide Enquiry Report dated 20.01.2006 that the charges against Ms. Mohanty stands proved. As per procedure a copy of Enquiry Report was sent to Ms. Mohanty on 25.01.2006 for her representation, if any, against the findings of the Enquiry Officer. AND WHEREAS in her reply dated 20.02.2006 Ms. Mohanty has pleaded that the Enquiry Report was corrected by Ms Kala [a prosecution witness], the office has not provided her Internal Audit report, Vigilance Check report of DO 6 for the last five years, leave position appearing in Self Appraisal Form of CR for the last five years and leave record for the past five years, the Charge Sheet was served on her without Annexure III, as per marking in 16 98010 Attendance Register she has been asked to submit leave applications for holidays also, the attendance were manipulated under tenure of Shri Bharat Shah, Shri Naresh Kumar & Shri Halari and the Enquiry Officer has rejected her request to act Shri N R Moyanty [her husband] as her defence Assistant. AND WHEREAS the undersigned being the General Manager and Competent Authority after having gone through the Charge Sheet and other connected records / documents of the case observes that Enquiry Report was not corrected by Ms Kala [prosecution witness] but she has corrected the typing errors in the Minutes of the enquiry proceedings which was duly signed by Enquiry Officer & Presenting Officer. Internal Audit report and Vigilance Check Report has no relevance with her charges, therefore, it was not provided to her. Self Appraisal Form are part and parcel of Confidence Report, which is a privileged document of the company. She was given leave record and attendance sheets for the period covered under the Charge Sheet. Ms Mohanty was made available the documents forming part of Annexure III of the Charge Sheet, when she denied the receipt of the same. She remained on leave /unauthorized absence on preceding and succeeding days to holidays, therefore, as per Rules she has been asked to submit leave applications for such holidays also. It is incorrect to state that attendance were manipulated under the tenure of Shri Bharat Shah, Shri Naresh Kumar and Shri Halari. All Officers have access to the daily attendance sheet, it is not a secret document and she has never pointed out or raised objection that her attendance were marked wrongly. The Enquiry Officer has rightly decided that as per company rules an employee who is working within the region can act as Defence Assistant and disallowed Shri N R Mohanty, Ex-employee to act as