Arun Kumar Sharma vs Gnct Of Delhi & Ors.
2013 Latest Caselaw 1690 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of Decision : April 12, 2013

+                            WP(C) 1512/2012

       ARUN KUMAR SHARMA                                .....Petitioner
               Represented by:          Ms.Avnish Ahlawat, Advocate.

                                    versus

       GNCT OF DELHI & ORS.                            ..... Respondents
                Represented by:         Nemo.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J.

1. Petitioner Arun Kumar Sharma had joined service as an LDC in the year 1972 and by the year 2004 had rendered 32 years service, which was without any blemish. He had 300 days earned leave to his credit besides half pay leave for around 500 days. His mother-in- law not being well in Canada, he had desired to visit Canada and for which he filled up the necessary leave form on April 30, 2004 praying that earned leave be sanctioned to him from May 17, 2004 till September 16, 2004 to visit Canada.

2. He claims that since application seeking leave was not rejected and because he had purchased the air ticket in anticipation of leave being granted, notwithstanding leave not being formally sanctioned he flew to Canada around midnight on May 17, 2004 and was shocked to receive an e-mail in Canada on June 11, 2004 intimating that leave was

refused. He immediately requested to be voluntarily retired, a request which was declined. For unauthorized absence till March 21, 2005 he was charge-sheeted. Penalty of removal from service was inflicted which was turned down to one of compulsory retirement by the Appellate Authority leading Arun Kumar to file OA No.1759/2007 challenging the penalty imposed.

3. Vide order dated July 27, 2009 the OA was allowed holding:-

(i) Rule 14(18) of the CCS (CCA) Rules, 1965 was violated, in that, the Inquiry Officer had not put the incriminating evidence to Arun Kumar Sharma;

(ii) Demand for relevant documents to be produced was illegally turned down;

(iii) Arun Kumar Sharma had a genuine request to be firstly granted leave and secondly, in the alternative, to be voluntarily retired.

4. Quashing the penalty Arun Kumar Sharma was reinstated in service but without back wages.

5. Arun Kumar Sharma filed a writ petition in this Court registered as W.P.(C) No.3981/2010 making a grievance to back wages not being paid. Disposing of the writ petition vide order dated July 07, 2010 the Tribunal was directed to give reasons for denying back wages.

6. As per impugned order dated August 18, 2011, back wages have been held to have been denied on account of penalty being set aside on technical grounds.

7. Of the three reasons given by the Tribunal, the first two may be on technical grounds, but the third reason is not technical i.e. the

finding by the Tribunal that Arun Kumar Sharma was virtually compelled to be unauthorizedly absent because his request for leave was wrongly denied.

8. Thus, the Tribunal is not fully correct in recording that Arun Kumar Sharma was successful on technical counts.

9. That takes us to decide whether Arun Kumar Sharma should be paid back wages.

10. We note that the period is short. Compulsorily retired on January 24, 2007, he was taken back in service on October 01, 2009 when the Tribunal decided in his favour.

11. Neither counsel could inform us whether Arun Kumar Sharma has been paid pension during this period on account of he being compulsorily retired.

12. It may be true that leave was wrongly denied to Arun Kumar Sharma, but he should have approached the Court and not become a Judge in his own cause. As a Government servant he could not have left for Canada, how so wrongful was the act of the Government in denying leave to him. Thus, even he has contributed to the problem.

13. Since both, Arun Kumar Sharma and the Government have contributed to the problem, applying the principle of apportioning the blame for the wrong and hence the penal consequences thereof, we are of the opinion that facts of the instant case would justify Arun Kumar Sharma to be paid 50% wages for the period he was unauthorizedly absent with a clarification: If he has received pension during this period, the same would be adjusted from the arrears payable, with further rider: If

the pension received is more than 50% of the wages, the same would be treated as wages payable as per our decision.

14. Needful would be done within 8 weeks from today.

15. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE APRIL 12, 2013 mm