Narender Kumar Gupta vs Union Of India And Others
2009 Latest Caselaw 5022 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            W.P. (C.) No.7287 of 2008

%                           Date of Decision: 07.12.2009

Narender Kumar Gupta                              .... Petitioner
                  Through Mr.Sheshdutt Sharma, Advocate

                                     Versus

Union of India and others                          .... Respondents
                      Through Mr.Shravanth Shankar, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be                    YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                      YES
3.     Whether the judgment should be reported in                  YES
       the Digest?


ANIL KUMAR, J.

*

The petitioner has filed the present writ petition impugning the

order dated 11th August, 2008 passed in OA No.2261 of 2007, Narender

Kumar Gupta v. Union of India and others dismissing the original

application of the petitioner. The said original application had been filed

to challenge the order dated 4th October, 2005 imposing the

punishment of compulsory retirement from service on the petitioner and

the order dated 20th July, 2007 and 13th September, 2006 dismissing

his appeal and intimating the effective date of compulsory retirement of

the petitioner and declining the request of the petitioner for

reinstatement in the service with all the consequential benefits.

The petitioner had remained absent without leave with effect from

28th March, 2004 to 10th April, 2005 and again from 12th April, 2005 till

the passing of the order dated 4th October, 2005 imposing the

punishment of compulsory retirement on account of absence without

prior permission of the competent authority. The punishment of

compulsory retirement was imposed on the petitioner after a memo

dated 18th February, 2005 under Rule 14 of CCS (CCA) Rules, 1965 was

issued to the petitioner at his residential address available in the

records of the respondents which was received back undelivered. A

notice under Rule 19 (ii) dated 21st March, 2005 was also published in

the local newspapers, Dainik Jagran and Indian Express on 28th March,

2005.

It had also transpired that complaint dated 10th February, 2005

was received from Sh. Inder Singh Ruhill along with photocopy of arrest

warrant issued against the petitioner and another complaint dated 19th

April, 2005 was received from Shri Raj Singh regarding non-refund of

loan amount of Rs.1.00 lakh. The cheque given by the petitioner to

these persons had also bounced.

The petitioner was proceeded ex parte in the enquiry proceedings.

However, later on while challenging the order of punishment imposing

the punishment of compulsory retirement, the petitioner had contended

that he was sick and he had requested for leave but instead of

considering his request for leave, he was issued major penalty

chargesheet vide memo dated 17th February, 2005 which was never

served on him and the Inquiry Officer did not follow the prescribed

procedure while giving his report. It was also contended that the copy

of the inquiry report was not served on him and, therefore, the order

dated 4th October, 2005 compulsorily retiring him from service is wrong,

illegal and liable to be set aside. The applicant also contended that he

was transferred on 1st February, 2005. The transfer order was also sent

on the wrong address and therefore, he could not receive it. The

petitioner also contended that he was absent due to sickness and he

had submitted the medical certificate.

The Tribunal while considering the petitioner‟s original

application took into account adoption of all possible modes and

methods by the respondents to put the petitioner to notice about the

chargesheet and the letters sent to the petitioner to join duties at the

addresses which were in the records maintained in the office of the

respondents. The Tribunal has also considered the letters written to

Deputy Commissioner of Police to know the whereabouts of the

petitioner. This has not been established that the petitioner had given

his changed address or intimated the new address to the respondents.

The petitioner had joined the duty for one day on 11th April, 2005

on which date a copy of the chargesheet dated 17th February, 2005 was

handed over to him. During the inquiry, neither the petitioner appeared

nor gave any statement nor joined the duties. In the circumstances, the

petitioner cannot make a grievance that adequate opportunity was not

given to him and the finding of the authorities that petitioner had been

given adequate opportunities and he was proceeded ex parte after

taking adequate steps to serve and intimate him, cannot be faulted.

The letters relied on by the petitioner allegedly intimating the

authorities about the change of address were sent on 2nd February,

2006 and 3rd March, 2006, whereas the penalty order had been passed

on 4th October, 2005. The petitioner has failed to show sufficient

reason for his non-appearance during the inquiry proceedings till the

penalty order dated 4th October, 2005 of compulsorily retiring the

petitioner was passed.

The Tribunal has also considered the letter dated 2nd February,

2006 on which the petitioner relied to contend that he had sent the

medical certificate. However, perusal of the letter reveals that no

medical certificate was submitted by the petitioner even at that stage.

The respondents in order to verify the correctness of the allegations

made by the petitioner regarding his illness had also written letter to

Chief Medical Superintendent, UNHM Hospital, Kanpur and in response

it was clarified by the concerned doctors that they had never suggested

any medical leave to the petitioner. Though the petitioner had placed

reliance on the medical prescriptions, but from the prescriptions it was

inferred that they do not suggest any medical leave to the petitioner and

in the circumstances the petitioner had not been able to make out any

sufficient cause for his absence from the office. Taking into

consideration the warrants of arrest issued against him and the fact

that he had not paid the loan amount, it was inferred that the petitioner

deliberately and without any justifiable reason absented from the duties

in order to avoid legal proceedings initiated against him by his creditors

and the inferences of the authorities concerned, therefore, cannot be

faulted on any of the grounds raised by the petitioner.

The Tribunal had also declined to interfere with the punishment

of compulsory retirement on the ground that the decision of the

competent authority is not to be interfered specially regarding awarding

the punishment in exercise of its power of judicial review unless the

inferences of the competent authorities suffer from an apparent error or

the penalty has been imposed in violation of the principle of natural

justice. The order of the Tribunal relying on various precedents of the

Supreme Court, therefore, does not suffer from any such illegality which

shall entail interference by this Court in exercise of its power under

Article 226 of the Constitution of India.

Learned counsel for the petitioner has very emphatically argued

that the penalty of compulsory retirement could be awarded only in

consonance with Rule 56(j) (ii) of Fundamental Rules and not as a

major penalty. Learned counsel for the petitioner has relied on 2001 (1)

SLR 171, Union of India v. Kishan Singh; 1998 (2) SLR 45, Kanhaiya

Lal v. State of Rajasthan & Others; (1998) 7 SCC 310, M.S. Bindra v.

Union of India and others; (2005) 9 SCC 748 and Pritam Singh v. Union

of India and others in support of his contention.

The precedents relied on by the learned counsel for the petitioner

are distinguishable as they deal with the compulsory retirement under

Rule 56(j)(ii) of the Fundamental Rules which contemplates compulsory

retirement from service in public interest in accordance with the

procedure contemplated under the same rule. The precedents relied on

by the petitioner do not contemplate that an employee cannot be

imposed major penalty of compulsory retirement as contemplated under

Rule 11(vii) of the CCS (CCA) Rules.

In Union of India v. Kishan Singh (supra), the authorities had

failed to furnish any material to demonstrate that the employee was

retired in public interest and consequently the order of compulsory

retirement was held bad in law. In another precedent, 1996(6) SLR

272, Narender Kumar V. Parikh v. State of Gujarat, the order of

compulsory retirement was based on allegation of misconduct and it

was held that it was punitive in nature and consequently Bombay Civil

Services Rules, 1959, Rule 161(1)(aa)(i) could not be invoked. In

Kanhaiya Lal (supra), it was held that the compulsory retirement was

an order of punishment in reality and since the order of compulsory

retirement was passed without following the principle of natural justice

and fair play, therefore, the order was set aside. In contradistinction,

the order of compulsory retirement has been passed against the

petitioner after conducting an inquiry and the findings of the Inquiry

Officer and the Disciplinary Authority cannot be faulted on the grounds

raised by the petitioner. In M.S. Bindra (supra) also, it was held that

the doubt about integrity could not be entertained on some surmises

and on these grounds it was held that an employee could not be

compulsorily retired allegedly in the public interest invoking

Fundamental Rules, FR 56(j). In case of invoking Fundamental Rules

56(j), it was held that public interest is the primary consideration. In

Pritam Singh (supra), it was held that an employee having an

unblemished record of 31 years could not be compulsorily retired under

Rule 56(j) of Fundamental Rules and the order of compulsorily retiring

such an employee was held to be arbitrary and was set aside.

The precedents relied on by the petitioner are apparently

distinguishable. The ratio of any decision must be understood in the

background of the facts of that case. What is of the essence in a

decision is its ratio and not every observation found therein nor what

logically follows from the various observations made in it. It must be

remembered that a decision is only an authority for what it actually

decides. It is well settled that a little difference in facts or additional

facts may make a lot of difference in the precedential value of a

decision. In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003)

2 SCC 111 (vide para 59), the Supreme had observed:-

" It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

The Supreme Court in Bharat Petroleum Corporation Ltd and

Anr. v. N.R.Vairamani and Anr. (AIR 2004 SC 778) had also held that a

decision cannot be relied on without considering the factual situation.

In the same judgment the Supreme Court also observed:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's

theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes."

In P.S.Rao Vs State, JT 2002 (3) SC 1, the Supreme Court had

held as under:

". There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases."

In Rafiq Vs State, 1980 SCC (Crl) 946 it was observed as under:

"The ratio of one case cannot be mechanically applied to another case without having regard to the fact situation and circumstances obtaining in two cases."

In CCS(CCA) Rules 11 (vii) contemplates compulsorily retirement

as a major penalty and consequently pursuant to an inquiry conducted

against the petitioner and the major penalty of compulsory retirement

imposed on him, cannot be faulted on the ground that the petitioner

could be compulsorily retired only under Rule 56(j)(ii) of Fundamental

Rules. Compulsory retirement in public interest is dealt with in

F.R.56(j) whereas compulsory retirement by way of penalty is provided

in Rule 11(vii) of the CCS (CCA) Rules. They are two different actions

and cannot be mixed up as the considerations which go into taking

these actions are entirely different. The plea of the petitioner is without

any legal basis and the order compulsorily retiring the petitioner is not

liable to be set aside on any of the grounds raised by the petitioner.

The writ petition, in the facts and circumstances, is without any

legal basis and the order of the Tribunal dismissing the petition of the

petitioner by order dated 11th August, 2008 in OA No.2261 of 2007,

Narender Kumar Gupta v. Union of India and others does not require

any interference by this court in exercise of its jurisdiction under Article

226 of the Constitution of India. The writ petition is therefore without

any merit and it is dismissed. Parties are however, left to bear their own

costs.

ANIL KUMAR, J.

December 07, 2009                                       VIPIN SANGHI, J.
„Dev‟