Delhi High Court

Madan Lal vs Chairman, Dtdc on 28 July, 2008

Author: Pradeep Nandrajog

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) No. 711/95

     Sh. Madan Lal                      ........ Petitioner
          Through:     Mr.Surya Kant Singhla, Adv. with
                       Mr.Shanto Mukherjee, Adv.

                             VERSUS
     Chairman,
     Delhi Tourism Development Corporation
                                      ........ Respondents
           Through: Mr.P.C.Sen, Adv. for the respondent.
                     RESERVED ON:
                        22.07.2008

                       DATE OF DECISION:
%                        28.07.2008

CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog

1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?

:    PRADEEP NANDRAJOG, J.

1. The petitioner, Shri Madan Lal challenges the order dated

28.01.1993 passed by the disciplinary authority imposing the penalty

of removal from service.

2. At the relevant point of time, the petitioner was working as

a permanent employee designated as a Junior Salesman under the

respondent and was posted in the surplus pool.

3. The petitioner was issued a memorandum of charges vide

memo dated 16.04.1991. His response was found inadequate and the

disciplinary authority appointed an inquiry officer with a direction that

the inquiry be held as per Rule 14 of the Central Civil Service

(Classification, Control and Appeal) Rules, 1965 read with Rule 12 of

the DTDC Staff Services Rules, 1986.

4. As per the memorandum of charges No.

VG/10581/4/91/DTDC dated 18.03.91 the petitioner was charged as

under:

"It is alleged that Shri Madan Lal while working in the Delhi Tourism as Jr. Salesman lacked interest and devotion to duties thus violation of Rule 3 of Conduct Rules 1964.

5. The statement of imputation on basis whereof the charge

was alleged reads as under:-

"Statement of Imputation of misbehaviour in support of the Article of Charge framed against Shri Madan Lal, Jr. Salesman.

It is alleged that Shri Madan Lal was habitual of proceeding on leave without intimation/ prior approval of the Competent authority, on many occasions he has proceeded on leave without prior intimation/approval of the Competent Authority and produced the application after ashining his duties. A list of such occasions is as under:-

1. 11.12.89 to 18.12.89

2. 07.01.91 to 13.03.91(corrected and admitted as 01.02.91)

This action on the part of Shri Madan Lal Jr. Salesman goes to suggest that Shri Madan Lal lacks the interet and devotion to duties hence violation of Rule 3 of Conduct Rules 1964.

Shri Madan Lal Jr. Salesman is hereby also informed that earlier also he was charge sheeted for major penalties under Rule 14 of the CCS (CCA) Rules 1965 vide Memo No. PER/1634/4/80/DTDC/2582 dated 19.9.88 for habitual absentism and proceeding on unauthorised leave without prior intimation as well as approval of the competent authority. After conducting proper departmental inquiry against the said Sh. Madan Lal the following penalties were awarded to him:-

"Reduction to a lower stage in the pay grade in which Sh. Madan Lal is working for a period of 2 years and he will not earn any increment during the penalty period."...................."

6. It may be noted here that the statement of imputation

reproduced herein above is a verbatim copy from the document

produced before the Court and hence has been noted with the spelling

and grammatical errors.

7. At the inquiry the statement of 4 departmental witnesses

were examined namely Shri Chandra Mohan Bassi, the Deputy

Manager; Ms.Madhu Sridhar, Manager (Personnel); Shri Ganga Saran,

Manager (Shop) and Shri Naresh Narula, Assistant Manager (Accounts).

Considering the testimony of the four departmental witnesses and the

documents proved, the inquiry officer submitted a report, inter alia, to

the following effect:-

"On the basis of the statement of the witnesses and documents, following facts emerges:-

1. That the official was in the habit of proceeding on leave without information and later on regularising it as mentioned by the witnesses.

2. Even after transfer to Head Office from operational units, the behaviour of the charged official improve and proceeded on leave without following the laid down procedure.

Keeping in view the statement of witnesses and documents it is proved beyond doubt that Shri Madan Lal while working in Delhi Tourism as Jr. Salesman lacked the interest and devotion to duties thus violation of Rule 3 of Conduct Rules, 1964."

8. After receiving the report of the inquiry officer and

supplying the same to the petitioner for his response and considering

the two, vide order dated 02.02.1993, the disciplinary authority

imposed the penalty of removal from service with immediate effect.

The order dated 02.02.1993 reads as under:-

Office Order WHEREAS an inquiry under Rule 14 of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 read with Rule 12 of the DTDC Staff Service Rules 1986 was initiated against Shri Madan Lal, Jr. Salesman.

WHEREAS Shri K.B.Sharma, Manager, was apoointed as Inquiry Officer to inquire into the charges framed against Shri Madan Lal, Jr. Salesman.

WHEREAS an Inquiry Report has been received from K.B. Sharma, Manager.

WHEREAS the findings of Inquiry Report was communicated vide Memorandum dated 11.11.91 to Shri Madan Lal.

AND WHEREAS the undersigned has carefully gone through the Inquiry Report and the reply of the Defence Assistant pertaining to the Report of the Inquiry Officer. I have also seen that Shri Madan Lal, was chargesheeted earlier on similar grounds for major penalty in Sept. 1988 and a major penalty was imposed on him.

DTTDC is a commercial Organisation and the official when proceeds on leave without information, it affects the working and commercial Transaction of the Corporation. Earlier a lenient view was taken against Shri Madan Lal, takes place from the Inquiry Report it may be seen that despite giving opportunity to Shri Madan Lal, Jr. Salesman, he has not shown any attempt/inclination to improve and has shown total lack of interest and devotion to work.

AND WHEREAS besides above Shri Madan Lal, was placed under suspension vide order No. IMFI/5638/91- 92/DTDC/2112, dated 15.09.91 and the Police Inquiry is still pending against Shri Madan Lal, in the above said matter and Shri Madan Lal shall be liable to meet the outcome of the said Inquiry.

AND NOW, THEREFORE, in view of the above, the penalty of removal from service is imposed upon Shri Madan Lal, Jr. Salesman with immediate effect.

Disciplinary Authority (Tarlochan Singh) Managing Director

9. It may be noted that during the inquiry various documents

were proved by the witnesses which, inter alia included the

memorandum issued to the petitioner on an earlier occasion resulting

in a penalty imposed vide order dated 19.9.1988, reference whereof

was made in the memorandum of charge pertaining to the instant

matter. The statement of imputation pertaining to the earlier inquiry

which was proved reads as under:-

"Statement of Imputation of misbehaviour in support of the Article of charge framed against Shri Madan Lal, Jr. Salesman

It is alleged that Shri Madan Lal was habitual of proceeding on leave without intimation/prior approval of the Competent Authority. On 13 occasions he has proceeded on leave without prior intimation approval of the Competent Authority and produced the applications after his duties. A list of such occasions is as under:-

13.3.85 to 19.3.85 31.8.85 5.9.85 5.11.85 to 6.11.85 11.2.86 to 14.2.86 26.12.85 to 27.12.85 8.1.86 to 9.1.86 26.2.86 to 28.2.86 27.3.86 to 29.3.86 15.9.86 to 21.9.86 7.3.88 to 11.3.88 22.2.88 to 26.2.88 7.3.88 to 11.3.88 2.8.88 to 11.8.88

Despite the fact that he was given a warning and he was directed to apply for leave 15 days in advance, he proceeded on leave with effect from 2.8.88 without prior intimation and approval of the Competent Authority. This action on the part of Shri Madan Lal, Jr. Salesman goes to suggest that Shri Madan Lal lacks interest and devotion to duties hence violation of Rule 3 of Conduct Rules 1964.

10. Another document proved during inquiry was an office note

dated 15.11.1990 proved by Ms. Madhu Sridhar which reads as under:-

"Manager (IMFL) may kindly like to that the following officials are habitual for taking leave without any prior permission from the undersigned as my shop have suffer due to unauthorised leave/absent, later on I have sanctioned as per their request, thinking they will not do anything in future but all in van. So, the undersigned hereby request to withdraw these officials viz:

      (i) Sh. Madan Lal       Jr. Salesman
      (ii) Sh. Bhopal Singh   Helper



           Submitted,
                                        Shop Manager
                                        D.T. & T.D.C.
                                   Wine Shop Nehru Place

M.D. May please approve for transfer of staff. We may also watch their performance at H.O. And take further action thereafter.

(Madhu) 15.11.90

11. Learned counsel for the petitioner, during arguments,

urged that the findings recorded by the inquiry officer which have

been accepted by the disciplinary authority are vitiated on account of

the evidence being misconstrued and relevant record not being

produced by the department. Learned counsel urged that Shri

Chandra Mohan Bassi, the Deputy Manager had admitted in his

testimony that there was a practice in the office to record telephonic

messages pertaining to leave intimation being communicated over the

telephone and that Shri Chandra Mohan Bassi did not produce the

record pertaining thereto.

12. Second contention urged was that the impugned order of

removal was vitiated on account of a material circumstance being

ignored. Referring to the observations in the order that DTTDC is a

commercial organization and when officials proceed on leave without

intimation, it affects the working and commercial transaction of the

corporation, learned counsel drew attention to the statement of Shri

Chandra Mohan Bassi where he stated that at the relevant time the

petitioner was in the surplus pool. Submission made was that being in

the surplus pool and not at a shop the question of commercial

transactions of the corporation being adversely affected did not arise.

Counsel urged that the disciplinary authority ignored this fact and

treated as if the petitioner was functioning at a place where

commercial transactions were being effected.

13. Third contention urged was that admittedly for the period

in question leave was subsequently sanctioned in favour of the

petitioner and thus the question of any misconduct on account of

unauthorized absence from duty did not arise. Learned counsel cited

AIR 1976 AP 75 G.Papapiah vs. Asstt. Director, Medical Services

Secundrabad in support of the said plea.

14. Fourthly, counsel urged that the penalty imposed was

disproportionate for the reason the short period of leave, even if

treated as unauthorized absence was not a misconduct of a kind which

attracted the major penalty of removal.

15. Lastly, counsel urged that the appellate order dated

26.9.1993 passed by the appellate authority rejecting the statutory

appeal filed by the petitioner was illegal inasmuch as the appeal

suffered a summary dismissal by a laconic order.

16. Learned counsel for the respondent countered the said

pleas by urging that no evidence was misconstrued and no relevant

evidence was ignored. Learned counsel submitted that Chandra

Mohan Bassi, Deputy Manager had clearly stated that he did not

receive any telephonic intimation from the petitioner pertaining to his

sickness. Thus, counsel urged that where was the occasion to produce

a record of the telephone calls received. Repelling the second

contention urged, learned counsel for the respondent submitted that in

the surplus pool, petitioner could be deputed at any place and could be

placed at any shop established by the respondent. Drawing attention

to the note dated 15.11.1990 of Ms.Madhu Sridhar counsel urged that

there was evidence on record that the habit of the petitioner absenting

without prior intimation was affecting the business of the corporation.

Qua the third plea, learned counsel urged that regularizing leave did

not mean that the misconduct of proceeding on leave without prior

intimation stood wiped out. On the plea that the penalty imposed was

disproportionate, counsel urged that past conduct of the petitioner

evidenced by the previous inquiry in which it was proved that on 13

different occasions the petitioner indulged in availing leave without

prior intimation or sanction justified the imposition of the penalty of

removal. The plea that the appellate authority rejected the appeal in a

summary manner was repelled with reference to the original record

produced at the hearing which showed that while considering the

statutory appeal, Shri J.P.Rai, the General Manager penned a note

dated 12.5.1993 recording that keeping in view the gravity of the

offence penalty which may be imposed should be anyone of the three,

namely, reduction to a lower stage in the time-scale for a specified

period; or reduction to a lower time-scale of pay with forfeiture of the

period of reduction for future service; or compulsory retirement.

Considering the note dated 12.5.1993 the appellate authority Ms.

A.Sood recorded a note that the years of qualifying service may be

intimated to her. It was followed by a note that the service rendered

by the petitioner did not entitle him to any terminal benefits towards

pension as he had yet to attain the length of qualifying service. Only

thereafter Ms. A.Sood passed the order rejecting the appeal.

17. The first contention urged needs a reference be made to

the statement of Shri Chandra Mohan Bassi, Deputy Manager of the

respondent who appeared as a witness of the department. Relevant

question and answer is as under:-

"Question: No this is wrong, there was proper information on telephone regarding the sickness and you attended the phone.

A: Whenever such a communication is received over the phone it is recorded in writing so that the leave could be regularized later on. So far as I recollect stressing on my memory I am sure that I did not receive any phone."

18. I fail to understand what record could be produced

evidencing that the petitioner gave information of his being on leave

over the telephone when Shri Chandra Mohan Bassi the person whom

petitioner claimed was the recipient of the information categorically

deposed that he did not receive any telephonic information from the

petitioner. Thus, it cannot be said that the disciplinary authority or the

inquiry officer misconstrued evidence or that the inquiry is vitiated on

account of relevant record not being produced.

19. The second contention urged is of no substance for the

reason no doubt at the relevant time the petitioner was in the surplus

pool but that does not mean that the commercial interest of the

corporation was not prejudicially affected by the petitioner repeatedly

availing leave without prior sanction and without a prior intimation.

Admittedly the petitioner was a junior salesman. His place was at the

retail shops run by DTTDC. Evidenced by the note dated 15.11.1990 of

Ms. Madhu Sridhar is the fact that the petitioner had to be sent to the

surplus pool on account of absenteeism without prior intimation or

leave adversely affecting the business of the wine shop at Nehru Place.

Further, the concept of a reserve pool needs to be understood. A

person in the reserve pool is deputed to discharge the duties at a seat

the incumbent whereof has availed prior leave. The replacement to

the seat is from amongst a reserve pool employee. The senior officer

in charge of the establishment deputes a reserve pool employee to

man a seat, holder whereof has given prior intimation of being on

leave. If this reserve pool employee who is otherwise expected to be

on duty does not come to the office, certainly, the commercial interest

of the organization is prejudicially affected. Thus, note dated

15.11.1990 apart, the effect of availing leave without prior sanction

and without prior intimation by the petitioner has certainly affected the

working of the organization. In any case, on the evidence on record

the said view is a reasonable and a probable view and this Court

exercising writ jurisdiction would not sit over judgment as an appellate

authority over the decision of the disciplinary authority.

20. The third contention pertaining to leave being

subsequently sanctioned was attempted to be made good with

reference to the decision of a learned Single Judge of the Allahabad

High Court in G.Papapiah's case (supra).

21. The law is settled on the point that the merely because the

leave of an employee is sanctioned or is accounted for the purpose of

paying the monthly salary does not mean that the misconduct of

availing leave without prior sanction and/or without prior intimation

stands waived.

22. In the decision reported as 1969 SLR 274 (SC) State of

Madhya Pradesh v. Harihar Gopal, the Hon'ble Supreme Court had

clearly stated that where a person is unauthorisedly absent, an order

which has the effect of regularising the period of unauthorised

absence is only for the purposes of regularising the leave and does not

condone the act of unauthorised absence.

23. In the decision reported as AIR 2003 SC 1800 Maan Singh

v. Union of India and Ors. the Hon'ble Supreme Court reaffirmed its

earlier decision in Harihar Gopal's case (supra). The latest on the point

is the judgment reported as 2003 AIR SCW 4984 State of Punjab vs.

Charanjit Singh. In para 5 it was held:-

"5. In the State of Punjab & Ors. vs. Bakshish Singh, 1998 (7) JT (SC) 142 which was relied upon by the Courts below in holding that the misconduct stood condoned, was explained in Maan Singh (supra). No law has been laid down in Bakshish Singh (supra) to the effect that only in the event, leave without pay is directed to be granted while passing an order of punishment, the leave having been regularized the order of punishment also becomes bad in law and void ab initio. While deciding Bakshshish Singh (supra), this Court had not taken into consideration an earlier binding precedent in State of Madhya Pradesh vs. Harihar Gopal, 1969 SLR 274 (SC) wherein it has clearly been stated that such an order is passed only for the purpose of regularizing the leave and thereby the effect of punishment is not wiped out."

24. In the light of the above noted judgments of the Hon'ble

Supreme Court it is clear that merely because a person has leave to

his credit does not mean that leave can be availed of at the sole

discretion of the employee as and when he chooses to go on leave.

Ordinarily leave would not be denied as per wishes of the employee

but exigencies of work may require the presence of the employee.

Besides, during the leave period, work being performed by the

employee has to be entrusted to someone else. The employer has to

reorganise work or make alternative arrangement.

25. Unfortunately, the learned Single Judge of the Andhra

Pradesh High Court did not consider the decision of the Hon'ble

Supreme Court in Harihar Gopal's case (supra) when decision in

G.Papapiah's case (supra) was pronounced.

26. The plea that the penalty imposed was disproportionate

ignores the previous misconduct on the same propensity i.e. availing

leave without prior sanction and without prior intimation. As recorded

in the statement of imputation, at a previous inquiry it was proved that

on as many as 13 occasions the petitioner remained on unauthorized

leave without prior sanction and without prior intimation. It need

hardly be re-emphasized that as a salesman the petitioner was to be

at any sale outlet of the respondent and sudden absence would

obviously prejudicially affect the commercial working of the

respondent. The gravity does not flow from one incident of availing

unauthorized leave. It flows from the repeated incidents of petitioner

being on unauthorized leave without prior sanction or intimation.

27. In the decisions reported as 2003 (4) SCC 331 Director

General, RPG vs. Ch.Sai Babu the Hon'ble Supreme Court recognized

that while inflicting punishment past misconduct could be considered.

28. The plea that the appellate authority has not considered

the appeal with fairness and with application of mind does not stand

the scrutiny of the record produced at the hearing. As noted above,

processing the appeal Shri J.P.Rai, General Manager penned a note

dated 12.5.1993 which reads as under:-

"The note from page 8/N may kindly be seen. This is in reference to the appeal filed by Sh. Madan Lal against the penalty of removal from service. The appeal of Sh. Madan Lal is available at 64/C.

Sh. Madan Lal was charge sheeted for wilful absence from duty. Enquiry was held and charges were proved. The file was submitted to the then Managing Director for necessary orders. The Managing Director vide his minutes at page 45/C imposed the penalty of removal from service of Sh. Madan Lal, Jr. Salesman. Against the orders of the then Managing Director Sh. Madan Lal has filed the present appeal.

I had gone through the case and find that the penalty

imposed upon Sh. Madan Lal is not commensurate with his guilt. No doubt Sh. Madan Lal was charge sheeted for major penalty but there are other penalties available under the head of Major Penalty which could be imposed upon Sh. Madan Lal. The penalties are:

1. Reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have effect of postponing the future increments of his pay;

2. Reduction to lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government Servant to the time scale of pay, grade, post of service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post of service from which the government servant was reduced and his seniority and pay on such restoration to that grade, post or service;

3. Compulsory Retirement.

Since Chairman is the appellate authority in the case the file is submitted before her for taking the decision.

(J.P. Rai) General Manager 12.05.93

29. The said note was considered by the appellate authority i.e.

the Chairman of the respondent Ms.A.Sood who penned a note dated

18.5.1993 as under:-

We as a Corporation have to be viable commercially and do not have place to carry on the burden of people who are not interested in working. Please let me know what is his number of years of qualifying service.