Delhi High Court
Director General Of Audit Central ... vs Pankaj Joshi on 5 July, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : 5th July, 2010
+ W.P.(C) No.2450/2010
DIRECTOR GENERAL OF AUDIT CENTRAL
EXPENDITURE AND ANR ..... Petitioner
Through: Mr.Ashok Bhasin, Sr.Advocate with
Mr.Gaurang Kanth and Mr.Rahul
Kumar, Advocates
versus
PANKAJ JOSHI ..... Respondent
Through: Mr.Shrigopal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Rule D.B. Heard for disposal.
2. It is not in dispute that the respondent, Pankaj Joshi,
was appointed as a clerk under the first petitioner in the year
2001 and has a most unsatisfactory service profile. He has a
tendency to overstay his leave, which had to be subsequently
regularized.
3. The law is clear. For purposes of the service record,
regularization of a leave which otherwise is availed of without
due procedure being followed, does not mitigate the
misdemeanour.
4. The misdemeanour of overstaying the leave which
was obtained are as under:
"(i) After availing his earned leave from 29.4.2002 to
2.6.2002, he had overstayed his leave from 3.6.2002
to 14.8.2002 which was subsequently regularized.
(ii) After availing his earned leave from 19.5.2003 to
30.5.2003, he had overstayed his leave from
31.5.2003 to 18.8.2003 which was subsequently
regularized.
(iii) After availing sanctioned extraordinary leave
from 1.5.2004 to 31.5.2004, he had yet again
overstayed his leave from 1.6.2004 to 5.9.2004 which
was treated as dies-non.
(iv) After availing his sanctioned leave from
16.5.2005 to 20.5.2005, he had overstayed his leave
from 21.5.2005 to 12.12.2005 which was yet again
treated as dies-non.
(v) Remained absent without intimation from
5.5.2006 to 3.8.2006."
5. Pertaining to the last misdemeanour of remaining
absent without intimation from 5.5.2006 to 3.8.2006, after
following the procedure prescribed by law, the penalty of
dismissal from service was inflicted upon Pankaj Joshi, which
order was challenged by him vide OA No.728/2008.
6. The challenge succeeded on the issue of
proportionality. Vide order dated 28.1.2009, Central
Administrative Tribunal held that the quantum of punishment
was shockingly disproportionate to the nature of charge.
7. The Tribunal held that Pankaj Joshi was an
outstanding sportsman and his passion for sports overtook
prudence and due to his immature age it was apparent that he
could not take prudent and mature decisions.
8. Setting aside the penalty, the Tribunal directed that
the competent authority should take a fresh decision on penalty.
9. Unfortunately, the competent authority reiterated the
decision to inflict the penalty of dismissal, which was the subject
matter of challenge by and under another original application
before the Tribunal being OA No.1732/2009.
10. Finding that its earlier decision had attained finality,
the Tribunal quashed the fresh order of dismissal and directed
the competent authority to re-decide the matter but with further
directions that the competent authority would not inflict the
penalty of dismissal, removal from service or compulsory
retirement.
11. This has been done vide impugned order dated
22.12.2009.
12. We have prohibited learned counsel for the petitioner
to urge that the penalty of dismissal from service is the
appropriate penalty, keeping in view that even in the past the
first respondent had resorted to similar conduct i.e. of
overstaying leave. Counsel pointed out that it was not a case
where the respondent overstayed the leave by a day or two. It
was pointed out that in the first instance, in the year 2002, the
first respondent overstayed leave by 2 months and 11 days.
The next year i.e. in the year 2003 he overstayed leave by 2
months and 18 days. The next year i.e. the year 2004, he
overstayed his leave by 3 months and 5 days. In the year 2005
he overstayed his leave by nearly 7 months and the year next
i.e. the year 2006 the first respondent remained absent without
intimation for 3 months.
13. It certainly is arguable whether under the
circumstances, the Tribunal was justified in holding that the
penalty of dismissal inflicted upon the first respondent is
disproportionate i.e. shakes the conscience of the court. But, in
view of the fact that the order dated 28.1.2009 has attained
finality, it does not lie within the domain of the competent
authority to re-impose the penalty of dismissal from service and
to this extent we concur with the view taken by the Tribunal in
its order dated 22.12.2009.
14. But, the Tribunal is wholly unjustified and has indeed
gone beyond its jurisdiction to direct that while re-considering
the matter the respondent cannot inflict the penalty of
compulsory retirement or removal from service.
15. Needless to state the penalty of dismissal from
service operates as a bar from being employed under the
Government. A penalty of removal from service or compulsory
retirement does not operate as a bar for re-employment.
16. That the first respondent is an outstanding sportsman
does not give him a license not to report for duty for months
together and that too, year after year. There has to be a limit to
tolerance.
17. It is settled law that where a delinquent commits
repetitive acts of delinquency; and of the same kind, it is a case
of obstinate and incorrigible behavior and the past conduct can
always be considered by the disciplinary authority in imposing
the penalty.
18. The writ petition accordingly stands disposed of
expunging the directions in the impugned order dated
22.12.2009 prohibiting the imposition of the penalty of removal
or compulsory retirement. It is clarified that the disciplinary
authority of the first respondent cannot impose the penalty of
dismissal from service.
19. In a nut-shell, we dispose of the petition directing the
disciplinary authority of the first respondent to re-decide the
penalty which has to be inflicted upon the first respondent and
while so doing we prohibit the authority from inflicting the
penalty of dismissal from service.
20. After giving valid reasons it would be open to the
authority concerned to pass an order imposing any appropriate
penalty, but not the penalty of dismissal from service.
21. Needful would be done within a period of 8 weeks
from today.
22. Dasti.
PRADEEP NANDRAJOG, J.
JULY 05, 2010 MOOL CHAND GARG, J.
rk
