J.K. Varshney vs Uoi & Ors.
2010 Latest Caselaw 1110 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       WP(C ) No. 12350/2009

%                            Date of Decision: 25.02.2010

J.K. Varshney                                             .... Petitioners
                         Through Mr. Manish K. Bishnoi, Advocate

                                     Versus

UOI & Ors.                                                   .... Respondent
              Through                Mr. R.N. Singh and Mr. A.S. Singh,
                                     Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                  YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                     NO
3.   Whether the judgment should be reported in                 NO
     the Digest?


ANIL KUMAR, J.

The pay of the petitioner was reduced by two stages from Rs.

7075/- to Rs. 6,725/- in the time scale of pay of Rs. 5500-175-9000 for

one year pursuant to the Disciplinary inquiry by the punishment order

dated 6th September, 2006 passed by the Disciplinary Authority and

sustained by the Appellate Authority by its order dated 1st May, 2007

which were challenged by the petitioner in OA No. 954/2008 filed before

the Central Administrative Tribunal, Principal Bench titled Jalaj Kumar

Varshney Vs. UOI & Ors., which has been dismissed by order dated 10th

July, 2009. The petitioner has challenged the order of the Tribunal

dated 10th July, 2009 in the present writ petition under Article 226 of

the Constitution of India.

The petitioner was absent from duty without intimation from 30th

October, 2000 up to 23rd February, 2003. Thereafter, he joined for few

months during which a memo dated 26th June, 2003 was issued to him

directing him to submit his leave application for the said period of

absence, which was ignored by him. Another reminder given to the

petitioner dated 6th October, 2003 to seek leave for the period when he

was absent unauthorizedly, was also ignored by the petitioner. During

this period his user section, i.e., DIPR vide their note dated 16th April,

2003 had also directed him to report to their coordinating section, i.e.,

R&D (Pers.) which note was handed over to the petitioner on 17th April,

2003, however, the petitioner declined to accept the same and act

according to the note, resulted into insubordination and disobedience.

Even after ignoring filing of the application for leave for the period

30th October, 2000 to 23rd February, 2003 and indulging in

insubordination in declining to move to the appropriate section, the

petitioner again went on unauthorized absence without any intimation

from 13th November, 2003 till 13th September, 2004.

On account of the acts of unauthorized absence and acts of

insubordination, the misconduct/misbehavior was imputed against him

and Articles of charges were framed and enquiry was initiated.

The petitioner contested the charges framed against him

contending, inter-alia, that his mother was suffering from

Schizophrenia for 33 years and her condition had worsened in

September, 2000 and continued deteriorating till her death up to 22nd

January, 2003 resulting into petitioner's compulsive absence from duty

during the period commencing from 30th October, 2000 to 23rd

February, 2003.

The petitioner contended that his absence was regularized by

grant of EOL (PA) vide letter dated 28th October, 2004 and the charge

sheet was issued to him on 3rd June, 2005 after regularization of his

unauthorized absence as EOL alleging contravention of provisions of

Rule 3(1)(ii) & 3(1) (iii) of CCS (Conduct Rules) 1964. After considering

the reply of the petitioner and the material on record, the inquiry officer

gave the finding of misconduct against the petitioner. Against the

enquiry report, the petitioner gave a representation to the Disciplinary

Authority. The disciplinary Authority after considering all the facts and

circumstances passed the order dated 6th September, 2006 imposing

the penalty of reduction of his pay by two stages.

Before the Tribunal learned counsel for the petitioner had

contended that once the period of absence has been regularized by

grant of EOL, no disciplinary proceedings could be held for

unauthorized absence and relied on Union of India & Ors. Vs. Rampal

(AIR 1996 SC 1500) and another judgment of High Court of Punjab in

State of Punjab Vs. Chanan Singh, (1988) 3 All India Service Law

Journal 216.In the circumstances, it was contended before the Tribunal

that once the period of absence is treated as leave of any kind, the

alleged misconduct of absent without permission does not survive.

The petition was contested by the respondent contending, inter-

alia that the punishment imposed on the petitioner is not only for

absence from duty without leave but was something more which was

the act of insubordination on the part of the petitioner and imputable to

him. In the circumstances, it was contended that the essence of the

charges against the petitioner are dereliction of duty, disobedience and

insubordination and also relied on the case of Rampal (supra).

Relying on Rampal (supra), it was contended that regularization

of the period of absence by way of granting EOL only covers the

unauthorized absence, however, it does not cover the lapse of not

availing the leave in violation of the rules. It was further contended that

where period of unauthorized absence is treated as EOL, in exercise of

independent and separate power, violation of rules in not availing leave

and insubordination, if any, is not regularized. The Tribunal noted that

reasons given by the Appellate Authority had approved the same,

holding that the manner of absence was taken into consideration by the

Inquiry Officer, Disciplinary Authority and the Appellate Authority and

merely because later on, unauthorized absence was treated as EOL will

not absolve the petitioner completely. The Tribunal also distinguished

the case of Chanan Singh where the Court had directed to treat the

absence as on leave.

Taking into consideration these facts and circumstances, the

Tribunal noted that the applicant has not been solely proceeded for

unauthorized absence as the charge of absence from duty had already

been regularized even before the issue of charge sheet. In the

circumstances, the petitioner essentially has been proceeded for lack of

devotion to duty and conduct of becoming a Government Servant and

insubordination and dereliction of duty in terms of the specific Rules

3(1)(ii) & 3(1) (iii) of CCS (Conduct Rules) 1964. In the circumstances,

the Tribunal has inferred that regularization of unauthorized absence

will not wipe out completely insubordination and the disobedience and

in the circumstances, the order of the Disciplinary Authority and

Appellate Authority imposing the punishment of reduction of pay of the

petitioner by two stages was upheld.

Learned counsel for the petitioner has relied on (2008) 8 SCC

469, State of Punjab Vs. Dr. P. Singla holding that effect of granting

leave is to regularize the unauthorized absence unless the misconduct

is not condoned while granting leave reserving right to take the

disciplinary action. Learned counsel for the petitioner has also relied

on CCS Rules 14(18) to contend that the Inquiring Authorities were

required to question him on the circumstances appearing against him

in the evidence for the purpose of enabling the Government servant to

explain any circumstances appearing in the evidence against him.

Perusal of the enquiry Report reveals that that the Article-II

regarding insubordination and disobedience has not been refuted by the

petitioner. The petitioner did not produce any evidence documentary or

otherwise during the course of proceedings therefore, Article-II of the

charge was established. The Article-II of the Charge which has been

established against the petitioner is as under:-

Shri JK Varshney, Assistant rejoined his duties on 24 Feb 2003 after remaining absent from 30 Oct 2000. However, he did not submit any leave application for the said absence period, even after rejoining his duty. A memo dated 26 Jun 2003 directing him to submit leave application for the said period of absence was served on him on 17 Jul 2003. It was followed by reminder dated 06 Oct 2003 but, to no avail. In view of his prolonged unauthorized absence from duty as well as willful insubordination Shri Varshney was surrendered by his user section i.e. DIPR vide their note dated 16 Apr 2003 and was directed to report to their Coord section i.e. R&D (Pers). This note was handed over to him on 17 Apr 03

but the individual declined to accept the same stating that he would move only on receipt of orders from the office of the CAO.

Though, the learned counsel for the petitioner has emphasized

that the unauthorized absence was treated as EOL, however it has also

been held by the Tribunal that will not negate the charge established

against the petitioner for insubordination and disobedience. Even

under Rule 14(18) of CCS (CCA) Rules, the Inquiry Authority may

question the circumstances appearing against the charged officer,

however, it does not impose any mandatory duty on the inquiry officer

to seek explanation from the charged officer especially in a case where

the charge is not refuted by the charged officer nor any evidence

documentary or otherwise is produced by the delinquent Officer.

Since the charge under Article-II was not refuted, it stood proved

and proof of the charge against the petitioner cannot be negated on

account of the power of the Inquiry Officer to question the charged

officer in its discretion in certain circumstances.

In the circumstances, the petitioner has failed to make out a case

that on account of grant of leave for the period he was absent without

authorization, the charge of insubordination and disobedience is also

wiped out. In the totality of facts and circumstances, we do not find

any ground to interfere with the order of the Tribunal dated 10th July,

2009 as it does not have any such illegality and irregularity, which

would require interference by us in exercise of this Court's jurisdiction

under Article 226 of the Constitution of India.

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

merit and it is therefore dismissed.

ANIL KUMAR, J.

FEBRUARY 25, 2010                                 MOOL CHAND GARG, J.
'rs'