Girish Kumar vs Uoi And Anr
2012 Latest Caselaw 2254 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment delivered on: 09.04.2012

+       W.P.(C) 1893/2012

GIRISH KUMAR                                                   ... Petitioner

                                         versus

UOI AND ANR                                                    ... Respondents

Advocates who appeared in this case:
For the Petitioners          : Ms Jyoti Singh, Sr Advocate with Mr Padma Kumar S.
For the Respondent           : Mr Sumeet Pushkarna

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE V.K. JAIN

                                   JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM 4136/2012 (exemption) Allowed subject to all just exceptions.

W.P.(C) 1893/2012

1. This writ petition is directed against the order dated 04.04.2011

passed in OA 1263/2011 as also the order dated 26.05.2011 passed in the

review application being RA 159/2011, both of which were dismissed by

the Central Administrative Tribunal, Principal Bench, New Delhi. The

petitioner was aggrieved by the order of removal which had been passed by

the disciplinary authority on 02.04.2007 and had been confirmed by the

appellate authority on 30.07.2007. His revision petition was also rejected

by the revisional authority on 11.12.2008.

2. The petitioner was working as Junior Intelligence Officer -I/

Mechanical Transport. He received a charge-sheet vide memorandum

dated 25.01.2006 under Rule 14 of the CCS (CCA) Rules, 1965. The

charge framed against the petitioner read as under:-

"That said Sh. Girish Kumar, while working as JTO-MT in SIB-Jaipur left his headquarters, Jaipur on 19.12.2004 evening without seeking prior sanction of leave from the Competent Authority leaving behind an application for sanction of CL/RH/GH etc. from Dec 20 to 26, 2004. After expiry of the said leave, he did not join duty on 27.12.2004 and was, therefore, on unauthorized absence since 27.12.2004. He failed to respond to the directions of SIB-Jaipur to appear before the authorities of RML Hospital, New Delhi for medical examination and ignored the directions to resume duty."

3. Pursuant to the enquiry conducted by the enquiry officer, the

disciplinary authority passed the order dated 02.04.2007 imposing the

penalty of removal from service which was not to be treated as a

disqualification for future employment under the government. While

passing the said penalty order, the disciplinary authority also directed that

the period of absence of the petitioner from 19.12.2004 to 23.04.2006, from

05.05.2006 to 16.05.2006 and from 27.05.2006 to 02.04.2007, that is, the

date on which the disciplinary authority passed the order, be treated as

'Extra Ordinary Leave' without pay and allowance.

4. We may point out at this stage that before the enquiry officer, the

petitioner was directed to appear on 10.05.2006. Upon a request made by

the petitioner that date was changed to 22.05.2006. The petitioner appeared

on that date and the matter was adjourned to 23.05.2006. On that date, the

petitioner had submitted that he had proceeded on leave without prior

sanction as he was not in a position to seek prior permission from the

concerned authority. He also stated that he had actually appeared before

the Medical Board at Dr. Ram Manohar Lohia Hospital but that he was not

in a position to tell the exact date. He also submitted that he would produce

the opinion given by the Medical Board on the next date of hearing. On

this basis, the enquiry officer permitted the petitioner to produce the

relevant evidence on the next date of hearing, which was fixed on

26.07.2006. However, the petitioner did not appear on that date nor did he

send any written intimation with regard to his non-attendance on that date.

He also did not produce any copies of the medical certificates etc. from the

Dr. Ram Manohar Lohia Hospital or of the Medical Board.

5. The enquiry officer fixed further dates of hearing on 17.08.2006,

09.10.2006 and 30.10.2006. But, the petitioner did not attend any of the

said hearings. Left with no alternative, the enquiry officer proceeded with

the case and returned the following findings:-

"I have gone through the charge levelled against the charged employee, arguments held by the prosecution, documentary evidences, admitted documents produced by the prosecution and also heard the charged employee twice during the hearings held on 22.05.2006 and 23.05.2006. In my opinion the charge levelled against Shri Girish Kumar, JIO-I/MT (charged employee) of leaving hqrs. On 19.12.2004 (A.N.) without seeking prior sanction, continued unauthorized absence since 19.12.2004 (A.N.) and also not abiding the departmental directions for a medical examination and not joining duty are proved in all respect."

Thereafter, as mentioned above, the disciplinary authority passed the

penalty order of removal from service on 02.04.2007. The appellate

authority rejected the petitioner's appeal on 30.07.2007 and the revision

was also rejected on 11.12.2008.

6. There is no dispute that the petitioner remained absent for about 16

months without any prior approval of leave. The only explanation that was

furnished by the petitioner was that he had sustained an injury while

playing badminton and thereby he had ruptured his ligament and, therefore,

he was unable to attend duty. On being questioned as to why he did not

inform anybody on 19.12.2004, when he proceeded on 'leave', he gave the

explanation that he did not want to disturb others and as such, he left the

headquarters. The Tribunal had remarked on this explanation as being

totally incorrect and as having been rightly rejected by the enquiry officer.

We do not see any reason as to why we should differ from this conclusion

arrived at by the Tribunal. We also note that the petitioner, who was

supposed to have joined on 27.12.2004 even as per the 'leave application'

which he had left behind on 19.12.2004, did not do so on that date. In fact,

he only sent a leave application on 13.01.2005 on medical grounds. It was

followed by certain other applications, the last of which was dated

07.03.2005. He, of course, sent medical certificates dated 25.02.2005,

11.03.2005 and 18.05.2005. In any event, there was no communication

from him after 16.07.2005 nor did he return to duty. We note from the

appellate order that the petitioner did not rejoin duty despite him having

been informed through phonograms/ memos dated 08.04.2005, 20.04.2005

and 06.05.2005 advising him to rejoin duty immediately.

7. It is apparent from the foregoing facts that the petitioner had no

explanation with regard to his long absence from duty. Despite repeated

reminders by the concerned authorities requesting him to join his duties

immediately, the only explanation that is forthcoming is that he was

seriously injured while playing badminton and as a result of which he was

incapacitated from joining duty. However, no such evidence has been

produced by the petitioner either before the enquiry officer or even before

the Tribunal.

8. Before us, the learned counsel for the petitioner sought to raise a

point which has not been noticed by the Tribunal in the impugned order

concerning the examination conducted by the SMS Medical College and

Hospital, Jaipur on 19.06.2006. A photocopy of the said examination

report has been placed at page 40 as Annexure P-3 to the writ petition. But,

we find that even if that were to be taken into consideration, it does not, in

any way, establish that the petitioner was incapacitated from joining duty.

Furthermore, the report itself indicates that the petitioner 'may be'

experiencing some pain in the knee joint while walking, running, standing

for long periods and driving for long periods and climbing stairs. But, this

does not, in any way, indicate that the petitioner underwent a surgery,

which is being urged by the learned counsel for the petitioner, nor does it

indicate that he was not in a position to attend duty.

9. It is, therefore, apparent that the petitioner has not been able to come

up with any explanation for his long absence from duty. In fact, we find

that the petitioner has not even submitted any application for leave after the

last application dated 07.03.2005. The petitioner had requested for time

before the enquiry officer to produce the evidence from Dr Ram Manohar

Lohia Hosptial with regard to his ailment. But, he was not able to do so.

He has not been able to produce any such evidence even before us.

10. In view of the foregoing, we do not see any reason whatsoever to

interfere with the findings returned by the Tribunal. We also do not find

any merit in the argument raised by the learned counsel for the petitioner

with regard to proportionality in respect of the penalty that has been

imposed upon the petitioner.

11. Consequently, the writ petition is devoid of any merit. The same is

dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

V.K. JAIN, J APRIL 09, 2012 SR