Shri Y.S.Tomar vs Food Corporation Of India & Ors.
2011 Latest Caselaw 1513 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 16.03.2011

                              WP(C) 2835/1994


SHRI Y.S. TOMAR                                             ..... Petitioner

                                      -versus-


FOOD CORPORATION OF INDIA & ORS.                            ..... Respondents

Advocates who appeared in this case:

For the Petitioner        : Ms Saahila Lamba, Advocate
For the Respondents       : None


CORAM :-
HON'BLE MR JUSTICE RAJIV SHAKDHER
1.   Whether the Reporters of local papers may
     be allowed to see the judgment ?          No
2.   To be referred to Reporters or not ?      No
3.   Whether the judgment should be reported Yes
      in the Digest ?

RAJIV SHAKDHER, J (ORAL)

1. By this writ petition a challenge has been made to the orders dated

07.02.1989 passed by the Appellate authority and order dated 23.04.1994 passed by

the Reviewing Authority. Both the authorities are of respondent no. 1.

2. The factual matrix in which the present writ petition has been filed requires to

be noticed.

2.1 The petitioner, who was the employee of respondent no. 1, at the relevant

time as a Technical Assistant, Grade - I, in District Bhatinda, had applied for leave.

The petitioner sought leave for the period spanning 02.02.1987 to 25.04.1987. The

leave, as requested, was sanctioned. Consequently, the petitioner sought and

obtained Leave Travel Concession (in short, „LTC‟); to which he was eligible.

2.2 It appears that on account of administrative exigencies, the leave of the

petitioner had to be cancelled. A telegram dated 3/4.04.1987, to that effect, was

issued to the petitioner. It is not disputed that the petitioner did not re-join his duty.

What the petitioner did instead was to issue a telegram on 27.04.1987 (which was

received by respondent no. 1 on 30.04.1987) seeking an extension of leave,

ostensibly on the ground that the petitioner had met with an accident. Importantly, in

the said telegram, the petitioner had conveyed, in no uncertain terms, that he would

be furnishing the requisite medical documentation along with an application to

formalize his request for extension of leave. It is also not disputed that nothing was

filed by the petitioner within the reasonable proximity of the communication dated

27.04.1987.

2.3. Consequently, respondent no. 1 issued another telegram dated 12.05.1987,

calling upon the petitioner to submit to the examination of the Chief Medical Officer

(in short „CMO‟). The said communication of respondent no. 1 was followed by yet

another telegram dated 01.06.1987 whereupon, respondent no.1 while referring to its

earlier communication, directed the petitioner to resume duty at once or in the

alternative submit to the examination of the CMO and obtain the necessary medical

certificates. In this communication the petitioner was also informed that if he failed

to do the needful, disciplinary action shall be initiated against him.

3. It appears that the aforementioned communications did not have much effect

on the petitioner. Consequently, a detailed letter dated 27/29.06.1987 was issued to

the petitioner. In the said letter, it was inter alia recorded, after reference to the

earlier letters of respondent no. 1, that the petitioner had neither submitted himself to

an examination by the CMO nor re-joined duty. In these circumstances, the

petitioner was called upon to show cause as to why disciplinary action ought not to

be taken against him for unauthorized absence and disobedience of orders issued by

respondent no. 1. The petitioner was called upon to furnish his reply within three

days, failing which disciplinary action as deemed fit would be taken against him.

4. The petitioner evidently did not furnish his explanation pursuant to the

aforementioned show cause notice. Resultantly, a memo of charge dated

15.09/06.10.1987 was prepared and sought to be served on the petitioner. The said

memo of charge was returned undelivered with the following remarks: "he was not

available at his given address after frequent visits".

5. Left with no choice, respondent no. 1 issued a public notice in the "Tribune"

datelined: 04.12.1987. In the public notice, briefly, the fact that respondent no. 1 had

not been able to serve the petitioner was brought out. The petitioner was also, by

this public notice, called upon to receive the memo of charge and resume his duties,

in Bhatinda District of respondent no. 1 within a period of seven days. The

petitioner was notified that in case he failed to do the needful, his services will be

dispensed with from the last date of his attendance, by invoking provisions of

Regulation 63(ii) of the FCI (Staff) Regulations, 1971 (in short „Regulations‟).

6. The petitioner seems to have been jolted out of his inaction and appears to

have issued a letter and a telegram of even date, i.e., 27.12.1987. Curiously, the

telegram is not on record and respondent no. 1 seems to have received the telegram

but not the letter. The purpose appears to be that even though both communications

were evidently dispatched on the same date, only the letter dated 27.12.1987

contained a reference to the new address of the petitioner. However, by design or

otherwise the letter which contained the changed address of the petitioner did not

reach respondent no. 1. The counsel for the petitioner has fairly stated that

respondent no. 1 has not accepted receipt of letter dated 27.12.1987.

7. What is not disputed, is also that the petitioner having been notified that

respondent no. 1 was serious in its resolve to take disciplinary action against him,

decided to communicate with it, and consequently, by a letter dated 05.01.1988

sought to explain his absence from duty on the ground of "injury and other illness

and mental tension due to domestic difficulties". This was also furnished as reason

for not furnishing the medical certificates at an earlier point in time. With this letter

medical certificates were furnished.

7.1 Even though the photocopies of the medical certificates appended to the

petition are quite illegible they appear to span a period from April, 1987 to

December, 1987.

7.2 At this juncture it is pertinent to note, a fact which is not disputed by the

learned counsel for the petitioner, that neither in the correspondence dated

27.12.1987 nor in the letter dated 05.01.1988 did the petitioner describe the nature of

his injuries.

7.3 What has come through on perusal of the contents of the appeal of the

petitioner filed with the Appellate Authority, to which I will make a reference shortly

hereafter, is that the petitioner claims to have fractured his right hand. A perusal of

the medical certificates would, however, show that the bed rest was being advised for

an ostensible problem of the petitioner qua his right knee. There is, decidedly, as

accepted by the learned counsel for the petitioner, no reference to the fracture

evidently sustained by the petitioner in his right hand.

8. In the aforesaid circumstances, respondent no. 1 on 09.02.1988 formally

served upon the petitioner a memorandum of charge, which it had been seeking to

serve since September-October, 1987. Interestingly, in the covering letter, the

petitioner was once again directed to appear before the CMO for medical check-up.

In response to this the petitioner appears to have sent a communication dated

15.03.1988 which reads as follows:

"Sir, I deny all the charges. I have already submitted medical certificates of authorized Doctor. As far as appear before Chief Medical officer Baharanpur is concerned CMO, says come through department. Please send one thousand rupees for conveyance, Medical examination and treatment."

9. What is noticeable from the reply dated 15.03.1988 that not only is it, almost

a non-reply, but that there is also an attempt to ward off examination by the CMO on

vague plea that he had been asked to "come through the department". There is no

reference or details given as to when the petitioner approached the CMO, and when

was his request refused. This is especially so, since the communication dated

09.02.1988, which called upon the petitioner to get himself examined by the CMO

was only one such communication.

10. To be noted, admittedly the petitioner did not appear in person before the

Enquiry Officer. As a matter of fact, in this regard a communication dated

08.06.1988 was sent by respondent no. 1 calling upon the petitioner to appear before

the Enquiry Officer on 13.06.1988. The petitioner, instead of appearing before the

Enquiry Officer, by a communication dated 11.06.1988 once against sought

accommodation on the ground that he was "ill". The communication dated

11.06.1988 was sent by the petitioner vide a telegram. In these circumstances, the

Enquiry Officer concluded the hearing and submitted his report on 13.06.1988.

11. The petitioner evidently thereafter, i.e., on 17.06.1988 sought to explain his

inability to attend the hearing on 13.06.1988 by sending a certificate of a doctor,

which alluded to the fact that the petitioner was suffering from "fever and malaria"

and was under his treatment between 08.06.1988 to 16.06.1988.

11.1 To be noted, neither the original nor the photocopy of the original certificate,

issued by the doctor, is appended. What is appended is annexure P-14 which is a

typed copy.

12. In view of the fact that the Enquiry Officer had come to the conclusion that

the charge against the petitioner of absence without leave stood proved, the matter

was placed before the Disciplinary Authority.

13. The Disciplinary Authority, in this particular case, after consideration of the

material before it, in exercise of its powers under Regulation 56, came to the

conclusion that a penalty of dismissal from service ought to be imposed on the

petitioner. It was ordered accordingly. The Disciplinary Authority in its order

observed that having considered the inquiry report, relevant record and the evidence

on record, it had no reason to disagree with the findings of the Enquiry Officer. The

Disciplinary Authority further went on to observe that, in view of the fact that the,

petitioner had absconded from duty and had paid no heed to the notices issued to

him, or even bothered to defend himself as regards the charges leveled against him,

and keeping in view his record, it did not deem it fit to continue the petitioner in the

service of respondent no. 1. Consequently, as noticed above, the Disciplinary

Authority imposed the penalty of dismissal on the petitioner.

14. Aggrieved by the same, the petitioner preferred an appeal to the Appellate

Authority. The Appellate Authority after considering the grounds of appeal, for

good reasons, came to the conclusion that the findings of the Disciplinary Authority

had to be accepted. The only concession that the Appellate Authority made was to

reduce and/or modify the penalty from one of dismissal to that of compulsory

retirement.

14.1 Against the order of the Appellate Authority a review application was

preferred by the petitioner. The Reviewing Authority, however, vide order dated

23.04.1994 sustained the order of the Appellate Authority.

15. Ms Saahila Lamba, who appears for the petitioner has impugned the orders of

the Disciplinary Authority, the Appellate Authority as well as that of the Reviewing

Authority. The contention of Ms Lamba is that there is no discussion in the orders

with regard to the medical certificates submitted by the petitioner vide letter dated

05.01.1988. It is also contended by Ms Lamba that before imposing the penalty,

which is undoubtedly a major penalty, the authority concerned was required to

accord an opportunity to the petitioner to make a representation.

16. Before I proceed further I may only notice that the matter is listed in the

category of „regulars‟ and has been called out at least on three occasions before

today, i.e., 11.03.2011, 14.03.2011 and 15.03.2011, despite which, there has been no

representation on behalf of the respondents. Therefore, I have decided to proceed

with matter. The record has been perused by me with the assistance of the learned

counsel for the petitioner.

16.1 In so far as the submission of the leaned counsel qua non-consideration in the

impugned orders of medical certificates appended with the letter dated 05.01.1988 is

concerned, it is misconceived. In this regard the point to be noted is that the reply

dated 15.03.1988 filed by the petitioner to the charge of absence without authorized

leave, there is a vacuous and bald denial to the effect: "I deny all charges. I have

already submitted medical certificates of authorized doctor". Admittedly, the

petitioner of his own choice did not appear before the Enquiry Officer. Therefore,

whether the medical certificates formed a pivot of his defence was not known. As is

the case often, stands taken in the reply are given up during the course of the enquiry

proceedings. The Enquiry Officer by the very nature of the proceedings is required

to consider the veracity of the charge made against the delinquent officer based on

the evidence produced both by the management and the charged officer. The

medical certificates by themselves were neither material nor evidence in the eyes of

law on which a finding could be returned. That being so Disciplinary Authority had,

therefore, no occasion to discuss this aspect.

17. In the appeal this aspect was raised. The appellate authority after taking into

account several aspects, while upholding the findings of the Disciplinary Authority,

converted the penalty of dismissal into one of compulsory retirement.

18. The argument of Ms Lamba that the petitioner was not given any opportunity

to represent at the stage of imposition of penalty is also without substance. The

reason being: under Regulation 59(4) of the Regulations, the Disciplinary Authority

is not obliged to give any such opportunity at the stage of imposition of penalty. As

a matter of fact it is conceded by the learned counsel for the petitioner that such an

opportunity was available to a delinquent officer prior to 1979 when, at the stage of

imposition of penalty a show cause notice was issued and a reply sought. The

Regulation has been specifically amended to do away with a second opportunity of

representation at the stage of imposition of penalty. It is quite obvious prior to the

amendment opportunity was given to a delinquent employee both at the stage of

inquiry and also at the stage of penalty. This has been done away by the 1979

amendment. There is no challenge to the Regulation. Therefore, this argument also

does not find favour with me.

19. Before I conclude I must also make a reference to the fact that after pursuing

the material on record, I have come away with a distinct feeling that the petitioner

filed documents in the form of medical certificates and left it at that, only to avoid

the examination of their veracity. The factors which have made me come to this

conclusion are as follows:

19.1 The petitioner at his own peril chose not to appear before the Enquiry Officer

in support of the case set up by him. What is most disconcerting is that even though

the petitioner by his communication dated 24.4.1987 had informed respondent No.1

that he would be furnishing the requisite medical certificates along with a proper

application, the same was not produced till he served upon respondent No.1 the letter

dated 05.01.1988. What is curious is that the petitioner has relied upon a letter dated

27.12.1987 with which ostensibly he had enclosed the medical certificates.

However, the said letter as observed by me above was not served upon respondent

No.1.

19.2 What makes the case of the petitioner even more doubtful is the vague

averment made in the reply dated 15.3.1988 that he could not get himself examined

by the CMO as he had been asked by the CMO to come through the Department. As

already observed by me there is no reference in the reply dated 15.3.1988 as to when

the petitioner approached the CMO for his medical examination which, according to

him ended in a refusal by the CMO.

19.3 There is also no discernable answer available in the record as to why the

petitioner had not responded to respondent‟s earlier communication dated 12.5.1987,

9.6.1987 and 27.6.1987 calling upon him to resume duty or in the alternative get

himself examined by the CMO. As observed by me above, the entire defence, even

at this stage, of having met with an accident seems to be trotted up. The story of the

petitioner began with a fracture of the right hand and ended up with a problem with

his knee.

19.4 Based on the material on record I am of the view that no interference is

called for by this court in exercise of its jurisdiction under Article 226 of the

Constitution of India.

20. In view of the aforesaid, I find no merit in the petition. The same is

dismissed.

MARCH 16, 2011                                              RAJIV SHAKDHER, J.
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