Ajit Singh vs Uoi & Ors.
2009 Latest Caselaw 5000 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Decision :4th December, 2009

+                       W.P.(C) No.11666/2009

        AJIT SINGH                                    ..... Petitioner
                            Through Mr.R.K.Shukla, Advocate

                     versus

        UOI & ORS.                                ..... Respondents
                            Through Mr.Ankur Chhiber, Advocate

         CORAM:
         HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
         HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?
     2. To be referred to Reporter or not?                   No
     3. Whether the judgment should be reported in the Digest? No

PRADEEP NANDRAJOG, J. (Oral)

CM No. 11567/2009

Allowed.

W.P.(C) No.11666/2009

1. The record of inquiry has been produced.

2. After serving a charge memo an inquiry was held at

which the petitioner pleaded guilty. Notwithstanding the plea

of guilty, evidence was led and it was successfully established

that the petitioner remained unauthorizedly absent i.e.

deserted duty. With reference to his past service record which

reveals that even in the past the petitioner had been deserting

with periodical frequency and lesser punishment imposed were

not having the desired effect i.e. chastining the petitioner, the

disciplinary authority, inflicted the penalty of removal from

service.

3. Appeal filed before the Appellate Authority has been

found to be without any merit and hence even the appeal has

been dismissed.

4. Conceding before us that the petitioner had remained

absent without duty, it is sought to be urged that the reason

thereof was the medical infirmity of the petitioner and for

which it is stated that the petitioner had filed the requisite

medical certificates.

5. The record of inquiry shows that after the prosecution led

the evidence, the petitioner made a statement that he does

not desire to lead any evidence. This is recorded in the

proceedings dated 11.12.2007

6. Thereafter, on 28.12.2007, the petitioner gave a typed

application in which he stated that he does not intend to lead

any evidence in defence.

7. It is urged by learned counsel for the petitioner that

evidenced by the answer to question No.6, when petitioner

was generally examined on 11.12.2007, the reply thereto

shows that the petitioner had stated that he had already

furnished the requisite documents. Therefrom, learned counsel

for the petitioner seeks to urge that it is apparent that the

petitioner had furnished the requisite medical documents.

8. Suffice would it be to state that when examined,

whatever answer is given by the charged officer has to be

correctly recorded. But that would not mean that the answer is

correct.

9. Learned counsel for the petitioner has not been able to

show to us any acknowledgement received by his client or

even an application or even a letter under cover of which the

so called documents were furnished.

10. The record of the inquiry shows that the petitioner did

not file any document during the inquiry.

11. Thus, the plea that the inquiry is vitiated on account of

non consideration of the documents filed by the petitioner is

incorrect.

12. It is urged that the penalty imposed is disproportionate. It

is urged that for the solitary act of desertion for 9 days the

penalty of removal from service is shockingly disproportionate.

13. We find that in the statutory appeal filed by the

petitioner no such contention was raised.

14. It is settled law that before a writ court is called upon to

render opinion on a question, the same has to be raised before

the appropriate forum and decision of the forum invited on

the issue raised.

15. That apart, we see nothing shockingly disproportionate in

the penalty imposed, being that of removal from service, for

the reason this is not the solitary instance where the petitioner

has deserted.

16. As noted by the disciplinary authority, while imposing the

penalty of removal from service, there was past instances of

the petitioner absenting from duty without leave and that the

lesser penalties imposed in the past were not having the

desired effect.

17. It is urged that the disciplinary authority could not have

referred to the past misdemeanour.

18. It is settled law that while imposing a penalty, with

reference to the subject matter of the current misdemeanour ,

on the issue of penalty to be imposed if the current

misdemeanour is found to be correct, the past service record

of any employee can be considered.

19. We find no merit in the writ petition, the writ petition is

dismissed.

20. The record of inquiry has been returned to the

respondents.

PRADEEP NANDRAJOG, J

SURESH KAIT, J DECEMBER 04, 2009 hk