Sumer Singh vs Union Of India (Uoi) And Ors.
2002 Latest Caselaw 1969 Del

JUDGMENT

J.D. Kapoor, J.

1. Petitioner was removed from service on account of unauthorised absence of 8 months as a result of enquiry. He has filed this petition challenging the dismissal on the ground that no show cause notice was ever issued to him nor any enquiry was initiated. On the other hand the respondents stand is that he was given various opportunities but he did not participate and so ex parte enquiry was held.

2. Admittedly the petitioner was granted 10 days leave with effect from 8.7.96 to 17.7.96 and he was to report to his unit on 18.7.96. Petitioner claims that because of his medical treatment of pain of L2 and L3 categories he could not report back for duty and sent telegram that he was medically sick. He also sent a registered letter informing his unit about this on 16.7.96. Another telegram was sent on 14.8.96 along with medical certificate. According to him he was taking treatment at Sonepat Govt. Hospital whereas the call-up-notice was sent at his permanent address at Village and Post Office Pinana, Distt. Sonepat (Haryana). Last communication along with medical certificate sent by the petitioner was on 20.9.96. It is also admitted fact that the call-up-notices were sent at his permanent home on different dates, four out of them were received back undelivered with the remarks of the postal authority "WAPEES BAAR BAAR GHAR JANE PAR BHI PRAPTKARTA NAHI MILTA".

3. However, it is not clear whether the petitioner has throughout this period remained in Government Hospital at Sonepat or at times stayed back at his permanent home address. Though there is a strong presumption of service of registered notices or letters if these are received back with the remarks that on repeated visits that the addressee is not available, but such a presumption is dislodgeable in certain circumstances.

4. While defending the Enquiry Officer, learned counsel for respondents contended that Enquiry Officer tried his best to secure the presence of the petitioner by adjourning the enquiry on different dates and issuing notices after notices. However, on the other hand he acknowledged the receipt of the letter of calling upon him to attend the enquiry on 12.3.1997 and thus submitted his representation on 20.3.97 stating therein that he has not received any official correspondence as he was not at his permanent address and also produced certain out-door tickets of civil hospital Sonepat and requested the authorities not to pass any final order before he joins enquiry. At the same he did not mention as to when he will join.

5. Further that the petitioner has not come out with any documentary evidence showing that he was in hospital at Sonepat. On the contrary he has shown out-door tickets obtained from the hospital in support of the treatment being given to him. Repeated visits of the postal authority to his house with registered letters and further the notices sent by the Enquiry Officer on different occasions and the reports thereon show that the petitioner had sufficient notice not only about the call-up-notices but the proceedings initiated by the enquiry officer. Thus there has not been any infarction of principles of natural justice.

6. Counsel also emphasized that the over-stay and absence of 8 months and that too without any proof of having been bed-ridden or having been prevented from joining the duty or not reporting for duty by virtue of illness there was no other option open to the enquiry officer than to proceed in the absence of the petitioner. It is again strange and difficult to accept that the petitioner received the letter containing the findings of the enquiry officer at the same address but did not receive more than 7 or 8 letters sent to him at that address. It is not the case of the petitioner that he had informed the authorities about medical sickness and/or for extension of leave and address where he was staying temporarily for treatment. In these circumstances, the only obligation cast upon the Inquiry officer was to send the communication, notices including registered notices at the permanent address and the address given in the record.

7. Again the learned counsel urged that though medical certificate dated 14.8.96 shows that he was taking treatment as an out-door patient and medical certificate dated 14.8.96 advised him three weeks bed rest but even after expiry of 3 weeks the petitioner did not return to Unit. Petitioner did not report for unit and therefore final call-up-notice was issued at his permanent address but it was received back with the report that on repeated visits at his house the petitioner was not available. Not only that the respondents even gave an opportunity to the petitioner for submitting his representation in respect of the enquiry report copy of which was sent to him at his permanent home address and duly received by him intimating that representation be submitted within seven days but he did not submit any representation. Rather he sent a letter requesting the respondents not to pass final order till his joining duty. It is further contended that disciplinary authority did not deem it proper to keep the enquiry pending in the circumstances and ordered his removal from service. While justification offered by Respondents for proceeding ex-parte against petitioner leaves little scope for being faulted, we feel that he ought to have been granted opportunity to explain his position and stand taken by him in his representation. Removal from service deprives a person from his livelihood and is a far serious matter. It, therefore, warrants all requirements and safeguards provided under law to be observed. That nobody should be condemned unheard is the fundamental principle of natural justice, but even this should not be overstretched in cases where it is found that the delinquent was negligent or deliberately avoiding service of notice on him.

8. In almost identical case of department enquiry reported in 1996 (1) SLR 703, Dr. Ramesh Chandra Tyagi v. Union of India and Ors. the notices were received with the endorsement "left without address" and repeated that he has gone out and did not disclose where has he gone, it was held that such reports did not mean that it gave a right to enquiry officer to proceed ex parte unless it was conclusively established that he deliberately and knowingly did not accept it. The endorsement on the envelope that it was refused was not even proved by examining the postman or any other material to show that it was refused by the delinquent who denied on oath such a refusal. No effort was made to serve in any other manner known by law through under postal Act and Rules, the manners of service are provided. Therefore, balancing the scales in the facts and circumstances of the case, we feel that petitioner deserved to be heard a from once in the facts and circumstances of the case without premium being put on his unauthorised absence of eight months in a disciplined force. The petition is accordingly disposed of by providing:-

"The impugned order of removal from service of the petitioner pursuant to ex-parte enquiry shall stand set aside. he shall be reinstated in service without any back wages and subjected to a fresh inquiry under Rules which shall be completed and appropriate order passed in the matter within four months from the receipt of the order. If petitioner version is accepted, the disputed intervening period from the date of his removal shall be dealt with by the Competent Authority under rules."