Meenakshi Malik vs The Secretary, Indian Council Of ...
2010 Latest Caselaw 1232 Del

             IN THE HIGH COURT OF DELHI AT NEW DELHI

                           W.P. (C.) No.1290/2010

                         Date of Decision: 04.03.2010

Meenakshi Malik                                            .... Petitioner
                          Through Mr. J.P. Sengh, Sr. Advocate with Mr.
                                  Rono Mohanty, Advocate

                                   Versus

The Secretary, Indian Council of Agricultural         .... Respondent
Research
                      Through Mr. Gagan Mathur, Advocate for Mr.
                                S.R. Mathur, Advocate
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 was removed from service pursuant to disciplinary

proceedings initiated against her for remaining away from work without

due permission from 31st July, 2003 for a period of three years by order

dated 24th January, 2006, which was challenged by the petitioner in an

original application bearing OA No. 2262/2008 titled as Dr. (Mrs.)

Meenakshi Malik Vs. Secretary, Indian Council of Agricultural Research

which was dismissed by order dated 25th November, 2009. The

petitioner had also challenged the rejection of his representation by

order dated 18th June, 2008. Aggrieved by the dismissal of his original

application, the petitioner has filed the present writ petition.

Undisputed facts are that the petitioner remained absent without

due permission from 31st July, 2003 for a period of about three years.

Disciplinary Proceedings against the petitioner were ex-parte as the

petitioner had left India and she had gone to USA which is admitted by

the petitioner. Since, the charges framed against the petitioner

remained unsubstantiated, the penalty of removal from service was

passed, which was up held by the Appellate Authority.

The learned Senior counsel for the petitioner Mr. Sengh has

contended that the leave was sanctioned to the petitioner for certain

period, however, he has not been able to show anything that the leave

was sanctioned except for 50 days initially. The learned counsel has

also impugned the order on the ground of discrimination alleging that

her husband in similar circumstances, who remained absent from work

without permission for almost the same period as petitioner, has been

compulsorily retired whereas the petitioner has been removed from

service. The Tribunal while dealing with the case of the petitioner viz-a-

viz her husband has noticed and relied on the facts that there was

conscious effort on the part of the petitioner to cover up her programme

to go to USA as she had withdrawn funds from her GPF and had even

disassociated herself with the work of the Institution. The petitioner

had also availed only 50 days leave on the ground that she has to

attend to important work at home though she had left India. The

application for leave filed by her also disclosed reasons for absence as

urgent work at home for personal problems and personal reasons. The

Tribunal has also taken into consideration that on receiving the

information about the disciplinary action though the petitioner reported

back for duty and rejoined the duty, but after about a week she had

again absented and had gone abroad without informing the

respondents about her whereabouts.

In the circumstances, the petitioner cannot dispute that she has

remained absent without any leave after she had joined back and

reported the duty after initiation of disciplinary proceedings only for a

short period and thereafter again absented without permission and

without disclosing that he she had been going abroad. She also gave

false information about the reason for her absence.

Considering the circumstances of the petitioner, therefore, it

cannot be held that there was any reasonable justification for the

petitioner to remain absent from duty without informing the

respondents. In the circumstances, the Disciplinary Authority imposing

the punishment of removal from service, cannot be held to be excessive

nor the petitioner can raise the plea of discrimination. In any case,

before raising the plea of discrimination, the petitioner should have

disclosed the facts for absence pleaded by her husband showing the

similarity between her and the case of her husband. The petitioner

deliberately did not disclose correct facts and sought leave initially for

50 days on the ground of personal problems at home.

In the circumstances, the petitioner has not been able to make

out a case of discrimination nor there is any other illegality and

irregularity in the order of the Tribunal dated 25th November, 2009 in

OA No. 2262/2008 titled Dr. (Mrs.) Meekanshi Malik Vs. Secretary,

Indian Council of Agricultural Research so as to require any

interference by this Court in exercise of its 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.

March 04, 2010                                 MOOL CHAND GARG, J.
'rs'