Shri Hawa Singh vs Union Of India (Uoi) And Ors.
2005 Latest Caselaw 925 Del

JUDGMENT

Rekha Sharma, J.

1. Shri Hawa Singh was a peon in the office of the Director General of Indian Council of Medical Research, Ansari Nagar, New Delhi. On 7/18th December, 1989 he was issued a charge-sheet contaiing five articles of charge.

2. The sum and substance of the charges are as under :-

(i) The petitioner absented himself from duty without prior permission from 25th July, 1989 to 28th August, 1989. The reason of his unauthorised absence became known on receipt of a complaint on 20th September, 1989 from Shri Mehar Chand Sharma SAO-II with whom he was posted. The said Mehar Chand Sharma alleged that on 28th July, 1989, the petitioner had kidnapped his widowed sister Smt. Pinki Sharma and her minor son. The petitioner, on the other hand, with a view to get his unauthorised absence regularised submitted an application for grant of 35 days E.L., on the ground, that he had some important piece of work at home. The petitioner however was issued a memo on 6th September, 1989 asking him to explain within 7 days the reasons for which he was absent without prior permission from 25th July, 1989 to 28th August, 1989 to which no reply was received.

(ii) The petitioner again absented himself from duty from 1st September,1989 onwards.

He was again sent a memo dated 15th September, 1989 asking him to explain the reasons why disciplinary actions should not be taken against him and he was asked to submit his reply within 7 days. He submitted reply to the memo and stated therein that it was due to ill health that he could not attend office from 1st September, 1989 onwards. He also submitted medical and fitness certificate from a private practitioner asking for sanction of commuted leave for 55 days from 1st September, 1989 to 25th October, 1989. His said medical certificate/fitness certificate did not bear his signatures and he was therefore asked vide memo dated 3rd November, 1989 to furnish the information as to the nature of disease which he was suffering from, supported by physician's prescriptions given during the period of his illness on the basis of which he must have taken some medicines and also his address during the period he was confined to bed. He was asked to furnish the said information by 8th November, 1989, but he failed to furnish the information asked for. (iii)A written complaint dated 3rd November, 1989 was received against the petitioner from Shri S.C.K. Jain, Senior Administrative Officer (III) in which he pointed out the irregularities about the attendance of the petitioner on various dates between 26th October, 1989 to 6th November, 1989. As a result of the above complaint, he was called upon to explain his position vide memorandum dated 17th November, 1989 and he was simultaneously informed that his absence from duty from 1st September, 1989 to 17th November, 1989 was being treated as extraordinary leave without pay. On the same date, another memo was issued to him to show cause within three days of its receipt as to why disciplinary action should not be initiated against him for his unauthorized absence from duty, irregular attendance, coming to office late, and leaving early without prior permission from the officer concerned. He sent no replies to these memos.

(iv) On 21st November, 1989 at 11.30 a.m., petitioner entered the room of Shri S.K. Gupta SAO (I), tore the memo served on him calling for prescriptions etc. as a proof of his having fallen sick during the medical leave applied for by him from 1st September, 1989 to 25th October, 1989 and then threw its pieces on his table accusing him of causing harassment. He also used very derogatory language and with a menacing posture shouted at Shri S. K. Gupta for his audacity to sign the memorandum against him and stopping the payment of his salary for the period of his absence. He further told him that he would resign from the service of the Council, but would not spare him even if he was jailed for a period of 20 years. He did all this before Shri M.L. Handa, ADG(A) and Shri P.V. Chopra, Execuive Engineer, who happened to be present in the room at that time.

(v) The petitioner was also issued a memo dated 1st May, 1989 whereby his attention was drawn to the minor penalty of `Censure' which was imposed on him by the disciplinary authority on account of frequently absenting himself from duty, not applying for leave for the days he was absent, not obeying the orders of superiors, in-subordination, mis-behavior with a senior lady officer of ECD Division, disturbing office discipline and mis- behavior with Shri S.K. Gupta, Senior Administrative Officer. In this memo his attention was also drawn to the fact that he had admitted all the said charges and that considering the seriousness of the charges, he reserved a severe penalty, but keeping in view his young age and many years of service and his undertaking not to ever misbehave again, a lenient view was taken and he was imposed the penalty of `censure' only. Having stated these details, he was accused of not having made any improvement in his behavior and he was therefore told that he had made himself liable to severe punishment.

3. In view of the above allegations as detailed above, the authorities concerned thought it fit to initiate disciplinary proceedings against the petitioner. It appears that the Inquiry Officer who was appointed to go into the allegations repeatedly sent notices to the petitioner by registered post, as well as, by UPC at his address available on record so as to enable him to appear and defend himself. All those notices were received back unserved. Notice of the enquiry was also published in newspaper Hindustan' (Hindi). The petitioner was also personally informed about the dates of hearing as and when he came to the office to collect the subsistence allowance. Under the circumstances, he was proceeded against ex- parte. The inquiry officer, on the basis of material placed before him found the petitioner guilty of the charges and submitted the report to the disciplinary authority. On receipt of the inquiry report, the disciplinary authority sent a notice to the petitioner along with the inquiry report. This time, it appears, the service was effected on him for he put up his defense before the disciplinary authority and also personally appeared before him. It appears that before the disciplinary authority he took up the stand that he was not available at his house as he had gone to attend to his father who was allegedly ill. The disciplinary authority after giving a hearing to the petitioner and after going through the material on record, including the report of the Inquiry Officer found no substance in the defense set up by the petitioner and finding himself in agreement with the inquiry of nicer passed an order of his dismissal from service.

4. Aggrieved by the said order of dismissal, the petitioner preferred an appeal. Strangly enough, the appeal was heard by the same Director General, ICMR who had also acted as the disciplinary authority. The petitioner therefore went to the Central Administrative Tribunal with this, as well as, other grievances. The Central Administrative Tribunal disposed of the petition with the direction that the appeal filed by the petitioner be heard by a Director General other than the one who had passed the order of dismissal. Consequent upon the said order, the appeal was heard by the successor to the earlier Director General. However he too finding no merit in the appeal, dismissed the same. The petitioner again knocked at the door of the Central Administrative Tribunal. This time luck did not favor him and the Central Administrative Tribunal after giving him full hearing found no favor with the petition and dismissed the same. This is what has brought the petitioner to us.

5. During arguments, learned counsel for the petitioner made the following submissions:-

(i) There was miscarriage of justice inasmuch as the petitioner was proceeded against ex parte without any rhyme or reason. (ii) That the disciplinary authority did not apply its mind while dismissing the appeal.

(iii) The complainant before whom the petitioner allegedly tore the memorandum and threatened him with dire consequences was not examined.

(iv) The power of the disciplinary authority and the appellate authority was exercised by one and the same person.

(v) The punishment awarded is not commensurate with the alleged act of indiscipline.

6. It goes without saying that the learned counsel for the respondent contested the petition and submitted that the same was liable to be dismissed.

7. The submission that the petitioner was wrongly proceeded ex parte has no merit. Notices were sent to him at his recorded address. Assuming that he had temporarily left the place where he was living due to the illness of his father, he should have intimated the office about his changed address. He did not do so. Even otherwise he placed no material on record to prove that his father was actually ill and he had gone to attend to him. The department was also not furnished with any information as to for what period he had remained out of Delhi on account of illness of his father. As already noticed above the petitioner was also personally informed about the pendency of the departmental proceedings against him as and when he came to collect his subsistence allowance. The inquiry officer thus took all possible steps to serve the notices and even otherwise informed the petitioner about the on-going case against him at the departmental level. In this view of the matter, we feel, that the petitioner was rightly proceeded against ex parte.

8. The grievance of the petitioner that the complainant Shri S.K. Gupta was not examined is also without any merit. The complaint of Shri S.K. Gupta was available on record. There could have been some substance in the grievance had the petitioner been attending the disciplinary proceedings in which event he could have required the personal appearance of the complainant in order to cross-examine him but since he did not participate in the proceedings the department found the complaint which, at no point on time was withdrawn, to be sufficient to return a finding against the petitioner. There was enough material before the inquiry officer in the form of record and complaint of Shri S.K. Gupta to hold the petitioner guilty of the charges.

9. The grievance that the power of both the disciplinary and the appellate authority was exercised by one and same person is also without merit. This plea was raised by the petitioner in his earlier petition before the Central Administrative Tribunal, which, as noticed above, was disposed of with a direction that the appellate order shall be passed by some officer other than the disciplinary authority. Pursuant thereto, the appeal was heard by the successor to the earlier Director.

The grievance therefore was met. The said order has now become final and binding and stands complied with the passing of the appellate order by an officer who was competent to exercise the jurisdiction of the appellate authority.

10. The petitioner submits that the punishment awarded is too harsh. Is it so?

11. Here is a person who not only absented himself without intimation and without seeking prior sanction, but who also, on being asked to furnish explanation, gave tongue lashing to his superior, extended threats to him by telling him that he would not spare him even if he was jailed for 20 years.

He not only was guilty of dereliction of duty but compounded it by his mis-behavior and acts of open defiance. If this is not in-discipline, one may ask as to what then are the attributes of in-discipline ? We feel that the petitioner was a liability of the department and he was rightly dismissed from service.

12 We find no merit in the petition and the same is therefore dismissed.