Abdul Kadir vs Union Of India And Others
2010 Latest Caselaw 314 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P. (C.) No.386/2010

%                            Date of Decision: 20.01.2010

Abdul Kadir                                                   .... Petitioner
                             Through Mr.G.D.Bhandari, Advocate.

                                      Versus

Union of India and Others                                   .... Respondents
            Through                   Nemo.

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 petitioner has challenged the order dated 19th August, 2008

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA No.862 of 2007 titled Abdul Kadir v. Union of India through

General Manager and others dismissing his petition filed against the

order of his removal from service passed by Senior Divisional

Mechanical Engineer, Moradabad on 25th January, 2006 which was

confirmed by the Appellate and the Revisional authority on account of

petitioner's unauthorized absence from 2nd September, 2005.

The petitioner was serving as Technician Welder II and a

charegsheet dated 27th October, 2005 was issued to him on account of

his unauthorized absence from 2nd September, 2005 contending inter

alia that he was habituated to abstaining from duty unauthorisedly and

consequently he was upsetting the maintenance of railway services. It

was alleged that despite opportunities given to him to improve his

performance, no improvement was noted.

On inquiry, the charges leveled against the petitioner were

proved. A show cause notice was issued by Senior Divisional

Mechanical Engineer, Moradabad and after considering his oral pleas

and contentions, order of removal dated 25th January, 2006 was

passed. An Appeal preferred by the petitioner was dismissed on 22nd

August, 2006 noticing that petitioner had been punished twice earlier

for unauthorized absence from duty. The petitioner was unauthorisedly

absent for 225 days in 2003; 184 days in 2004 and 130 days in 2005

which was not denied by the petitioner. The revision was preferred by

the petitioner before the Chief Rolling Stock Engineer, Northern

Railway, Baroda House, Northern Railway, New Delhi, which was also

dismissed.

The Tribunal has considered the pleas and contentions of the

petitioner and noted that the petitioner was absent from 21st

September, 2005 up to 17th December, 2005. Though there was a

discrepancy as to whether he reported on 16th December, 2005 or 17th

December, 2005, it was held that it could not be denied that the

petitioner had abstained from work for 86 days unauthorizedly even if it

is accepted that he reported on 16th December, 2005.

The Tribunal has also considered two PMCs dated 21st

September, 2005 and 15th December, 2005 produced by the petitioner

which only shows that he was suffering from backache with Neurity and

weakness. The petitioner, however, did not inform orally or by any

letter to the respondents about his indisposition during the said period

prior to 16th December, 2005.

It has also been considered that from the certificates produced by

the petitioner, it cannot be held that he had such a debilitating

condition which would have prevented him from performing his work

and joining the duties especially since the place of work of the petitioner

was only about 5 to 6 kilometers from his residence.

Learned counsel for the petitioner has contended that the

daughter of the petitioner had died and consequently he was not able to

attend to his work. The period of unauthorized absence of the

petitioner is from 21st September, 2005 to 16th December, 2005 whereas

his daughter had died almost a year after, i.e., on 17th October, 2006

and, therefore, it cannot be held that on account of the demise of

petitioner's daughter he could not join the office.

The Tribunal has also noted that the petitioner had not submitted

reply to show cause notice given to him and has relied on Shyamapada

Bauri v. Eastern Coalfields Ltd. And others, (2007) 4 SLR 175. Learned

counsel for the petitioner has also contended that there has been

violation of principle of natural justice as the inquiry was completed

within one day. The similar plea was raised by the petitioner before the

Tribunal. It has been noted that when the petitioner appeared he was

asked to nominate his defense assistance, however, petitioner opted not

to engage defense assistance and he opted to defend himself. It was

admitted by the petitioner that he did not give any intimation to his

office about his absence from 2nd September, 2005 nor he had applied

for leave nor he had submitted any application. The petitioner rather

accepted charges leveled against him. Since the petitioner had

admitted the charges against him, conclusion of the inquiry on the

same day cannot be held to be in violation of principle of natural

justice.

In the circumstances, the inference of the Tribunal based on the

inquiry report and the order of the disciplinary authority that the

petitioner was callous, indifferent and apathetic towards his duty and

he was in the habit of abstaining from duty for prolonged period cannot

be faulted on any of the grounds as raised by the petitioner.

There are no grounds to interfere in the facts and circumstances

with the order of the Tribunal dismissing the petition of the petitioner.

The writ petition is, therefore, without any merit and it is dismissed.

ANIL KUMAR, J.

JANUARY 20, 2010                                MOOL CHAND GARG, J.
'k/Dev'