Shri Jai Bhagwan Verma vs Uoi & Ors.
2011 Latest Caselaw 6310 Del

           +*IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Date of decision: 22nd December, 2011
+                           W.P.(C) 8984/2011

%        SHRI JAI BHAGWAN VERMA                    ..... Petitioner
                      Through: Mr. Pradeep Kumar, Adv.

                                  Versus
         UOI & ORS.                                         ..... Respondents
                          Through:      Mr. Saqib, Adv. for R-1 to 3.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. The petition impugns the order dated 05.01.2011 of the Central Administrative Tribunal, Principal Bench, New Delhi dismissing O.A. No.1451/2010 preferred by the petitioner under Section 19 of the Administrative Tribunals Act, 1985. The said O.A. was preferred impugning the orders of the Disciplinary Authority imposing penalty of removal from service on the petitioner on charges of unauthorized absence.

2. The petitioner was employed as a Postal Assistant at Rohini Post Office, Delhi from 29.05.2003 to 31.05.2003; according to the respondent, he left the Post Office early without preparing the day account; thereafter from 02.06.2003 to 08.10.2003, he absented from duty without prior

permission or intimation and on 09.10.2003 submitted a Medical Certificate of a private Doctor; thereafter again with effect from 21.01.2004, he absented himself without any permission or intimation. The petitioner was charge-sheeted on 06.03.2006; however the charge- sheet sent to him by post at the address given by him was also returned with the endorsement of the petitioner having left the address; thereafter another letter dated 02.05.2006 was issued to him giving him opportunity to submit his defence; in respect thereto, he submitted a reply dated 02.06.2006 requesting a personal hearing; thereafter an inquiry was initiated. The inquiry officer found, the first charge, of leaving early from 29.05.2003 to 31.05.2003 without preparing the day account, to have been not established; with respect to the charge No.2 of unauthorized absence from 02.06.2003 to 08.10.2003, the Inquiry Officer found that the petitioner had on 02.06.2003 telephonically informed regarding his illness but had not been able to establish that he was ill during the said time; with respect to the third charge of unauthorized absence from 21.01.2004 till the issuance of the charge-sheet on 06.03.2006, the Inquiry Officer reported that the defence of the petitioner of suffering from serious ailment was not established.

3. The Disciplinary Authority on the basis of the inquiry report aforesaid, imposed the punishment of removal from service on the petitioner. The departmental appeal preferred by the petitioner was also dismissed.

4. The petitioner thereafter preferred O.A. No.508/2009 and finding the Appellate Authority to have not considered all the submissions of the petitioner, the Tribunal vide order dated 19.01.2010 therein remanded the matter to the Appellate Authority. The Appellate Authority thereafter passed a fresh order dated 25.03.2010 upholding the punishment imposed on the petitioner. Impugning the same, O.A. No.1451/2010 from dismissal whereof this petition has arisen, was filed.

5. The Tribunal in the order impugned before us has recorded that the charges of unauthorized absence from 02.06.2003 to 08.10.2003 and from 21.01.2004 to 06.03.2006 were not controverted and has held that the explanation of the petitioner thereof was not convincing. It was further held that the punishment of removal from service was in consonance with the misconduct of such prolonged absence without permission and which adversely affects the services rendered by government.

6. The counsel for the petitioner before us has not controverted the aforesaid factual or legal position. He has however invited our attention to the application dated 10.04.2006 moved by the petitioner seeking voluntary retirement and which was rejected on 21.04.2006 for the reason of disciplinary proceedings, initiated vide charge-sheet dated 06.03.2006, supra, pending against the petitioner. He has contended that considering the fact that the petitioner had joined the service as far back as in the year 1977 and had rendered over 25 years of service, the penalty be changed

from that of removal from service to compulsory retirement, to enable the petitioner to avail of his retiral benefits.

7. We have given our thoughtful consideration to the aforesaid aspect. Though the submission on the face of it appears attractive, in the light of the petitioner having rendered about 26 years of service but on further consideration, we are unable to accept the same. The application for voluntary retirement was made by the petitioner only after the charge-sheet had been issued. It can safely be presumed that the petitioner applied for voluntary retirement after he had knowledge of the charge-sheet. The counsel for the petitioner has been unable to show any error in the reason given for rejection of request for granting voluntary retirement. It is not in dispute that the respondent was fully justified in doing so in view of the disciplinary proceedings pending against the petitioner. We are of the opinion that if such unauthorized absence is to be condoned by converting the penalty from that of removal from service to that of compulsory retirement, to enable the petitioner to avail of his reitral dues, it would open the doors for all employees, after rendering 20/25 years of service, inspite of being at fault and guilty of serious misconduct to contend that the penalty of removal be not imposed on them. The same cannot be permitted and if so permitted, will hamper the functioning of the government and the departments thereof. The petitioner having failed to establish any reason for absence, was obviously employed elsewhere and / or in some other vocation and deserves no sympathy. It cannot also be lost

sight of that the pleas of the petitioner of illness have proved to be false.

8. Faced with the aforesaid, the counsel for the petitioner has sought to urge that the Appellate Authority did not even consider or analyze the matter properly. The said argument is now not open to the petitioner. The petitioner in the earlier O.A. (supra) preferred by him succeeded on the said ground and the fresh order passed by the Appellate Authority is well reasoned.

9. The counsel for the petitioner then contends that even the Disciplinary Authority did not give any reason. We are afraid that the said argument is not open to the petitioner. The petitioner having in the earlier OA (supra) succeeded on the ground of the order of the Appellate Authority being unreasoned cannot now be heard to find fault with the order of the Disciplinary Authority.

10. We thus do not find any merit in the writ petition, the same is dismissed.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE DECEMBER 22, 2011 'gsr'..