Delhi High Court

Y.S. Tomar vs Food Corporation Of India & Ors. on 30 August, 2011

Author: Sanjiv Khanna

*         IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    LPA No. 708/2011

%                             Date of Decision: August 30, 2011


Y.S. Tomar                                          ....Appellant
                   Through           Mr. Nikilesh R., Advocate with
                                     Mr. G. Suraj, Advocate.
                VERSUS
Food Corporation of India & Ors.                    .....Respondents
                Through

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA

                               ORDER

In this intra court appeal Y.S. Tomar has impugned the order

dated 16th March, 2011, dismissing his Writ Petition (Civil) No.

2835/1994 and order dated 3rd June, 2011, dismissing his review

application - CM No. 347/2011.

2. The appellant was an employee of Food Corporation of India and

was posted as Technical Assistant, Grade-I, in District Bhatinda. He had

applied and was sanctioned leave from 2nd February, 1987 to 25th April,

1987, to avail Leave Travel Concession. The petitioner did not report

back for duty inspite of the fact that by telegram dated 3/4th April,

1987, the leave was cancelled on account of administrative exigencies

and the appellant was asked to rejoin the duty. The appellant in

response to the telegram had submitted that he had met with an

accident and would be furnishing requisite medical documentation with

request for extension of leave. However, nothing in proximity was

furnished by the appellant. The appellant by another communication

dated 12th May, 1987 was called upon to report for examination by the

Chief Medical Officer (CMO). By yet another communication dated 1st

June, 1987, the appellant was asked to resume duty at once or in the

alternative submit to the examination of CMO and obtain necessary

medical certificate. There was no response. Consequently, another

detailed letter dated 27/29th June, 1987 was issued to the appellant

making reference to earlier letters and warning that disciplinary action

shall be taken in the case the appellant did not report for duty or report

for examination by the CMO. Again there was no response, resultantly

a memo of charge dated 15.09/06.10.1987 was prepared and sought to

be served on the appellant. The memo of charge could not be served

and was returned undelivered with the remarks that the appellant was

not available even after frequent visits. In these circumstances, a public

notice was issued in the 'Tribune' datelined 4th December, 1987. The

appellant was notified that in case he failed to report, his services

would be dispensed with effect from the last date of his attendance by

invoking provisions of Regulation 63(ii) of the FCI (Staff) Regulations,

1971.

3. The appellant thereafter responded by telegram dated 27th

December, 1987. The appellant claims that he had written a letter but

the same was not received and the respondent dispute the said letter.

As noticed by the learned single Judge, this controversy is

inconsequential. Thereafter, the appellant by letter dated 5th January,

1988 was asked to explain his absence. The appellant gave some

explanation by his letter dated 5th January, 1988 and also submitted

medical certificates. Learned single Judge has recorded that the

photocopies of the medical certificates were illegible and appear to

span the period from April, 1987 to December, 1987. Learned single

Judge has further noticed that the appellant did not describe the nature

of alleged injuries suffered by him. It is further recorded by the learned

single Judge that a perusal of the medical certificate would show that

the appellant was advised bed rest for ostensible problem in his right

knee. There is no reference to the alleged fracture sustained by the

appellant in his right hand.

4. A formal charge-sheet dated 9th February, 1988 was served upon

the appellant. By this charge-sheet, the appellant was also directed to

appear before the CMO for medical check-up. In response, the

appellant stated that as far as appearing before the CMO was

concerned he would come through the department and Rs.1,000/-

should be sent for conveyance. The aforesaid reply has been rightly

categorized by the learned single Judge as no reply. In case the

appellant was genuinely unwell and had suffered a prolong sickness,

there was no reason why he would have not got himself examined. It is

a reflection on the attitude of the appellant who had failed to attend

duties and did not appear before the CMO inspite of repeated

letters/reminders.

5. The appellant did not appear before the enquiry officer on the

ground that he was ill. The enquiry officer concluded his proceedings

and submitted his report on 13th June, 1988. Enquiry officer held that

the charge against the appellant of absence without leave stood

proved. The disciplinary authority in exercise of its powers under

Regulation 56, imposed the penalty of dismissal from service. However,

the appellate authority after considering grounds of appeal, reduced

the penalty from dismissal to that of compulsory retirement. The order

in review has sustained the order of the appellant authority.

6. On merits there is hardly any material or ground for the

appellant to urge. The facts speak for themselves. The appellant did

not report back for duty after the leave. He remained absent from duty

for a period of over an year from April, 1987 to May, 1988, when charge

sheet was issued. Repeated communications and warnings proved

futile. He did not even report and get himself examined by CMO. Such

indiscipline and indifference to work obviously has its own

consequences and the authorities have rightly observed that the charge

against the appellant of absence without leave stands proved.

7. The Supreme Court in Delhi Transport Corpn. v. Sardar Singh,

(2004) 7 SCC 574, has held as under :

"9. When an employee absents himself from duty, even without sanctioned leave for a very long period,

it prima facie shows lack of interest in work. Para 19(h) of the Standing Orders as quoted above, relates to habitual negligence of duties and lack of interest in the authority's work. When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer's work. Ample material was produced before the Tribunal in each case to show as to how the employees concerned were remaining absent for long periods which affects the work of the employer and the employee concerned was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was no negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalisation. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.

10. Great emphasis was laid by learned counsel for the respondent employee on the absence being treated as leave without pay. As was observed by this Court in State of M.P. v. Harihar Gopal by a three-Judge Bench of this Court, even when an orderis passed for treating absence as leave without pay after passing an orderof termination, that is, for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in the extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the governing

Standing Orders unauthorised leave can be treated as misconduct."

8. With regard to the medical certificates issued by private doctors,

learned single Judge has rightly held that it was for the appellant to

prove the said medical certificates by appearing before the enquiry

officer. As the appellant did not appear and prove the said material,

the disciplinary authority had no occasion to discuss the said aspect.

9. In the review application, a new contention was raised that as

per the sub regulation 2 of Regulation 56 of FCI (Staff) Regulations

1971, the Deputy Zonal Manager was not the competent disciplinary

authority as he was lower to the rank of the Appointing Authority or

Promotion Authority. In this connection, our attention was drawn to

the promotion order dated 27th August, 1971. It was submitted that

the said order was issued by the Zonal Manager, though the letter was