Rakesh Saini vs U.O.I & Ors.
2013 Latest Caselaw 3464 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of decision: August 06, 2013
+       W.P.(C) 4975/2013

        RAKESH SAINI                                      ..... Petitioner

                     Represented by:    Mr.Raj Kumar Sherawat,
                                        Advocate

                     versus

        U.O.I & ORS.                                    .... Respondents

                     Represented by:    Mr.R.V.Sinha, Advocate with
                                        Mr.R.N.Singh, Advocate

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V.KAMESWAR RAO

V.KAMESWAR RAO, J. (Oral)

1. The challenge in this writ petition is to the order dated May 09, 2012 passed by the Central Administrative Tribunal in Original Application No.3087/2011, whereby the Tribunal has dismissed the Original Application filed by the petitioner herein.

2. Some of the relevant facts are, that, the petitioner while working as a Diesel Cleaner with the respondents, was served with a charge-sheet on August 24, 1996 for unauthorized absence.

3. The Inquiry Officer after conducting the inquiry, had proved the charges against the petitioner vide his report dated October 17, 1997. Based on the report and other relevant records, the Disciplinary Authority

imposed a penalty of removal of the petitioner from the service vide its order dated July 10, 1998.

4. The petitioner filed an appeal against the order of the Disciplinary Authority which was rejected on the ground that the same was time barred in terms of order dated October 24, 1998.

5. A Revision Petition was filed by the petitioner on August 19, 2003 purportedly on the ground that he has not received the order of the Appellate Authority. The Revision Petition was also dismissed on the ground that it was time barred. On December 21, 2009 the petitioner submitted a mercy petition under Rule 31 of the Railway Servants (Discipline and Appeal) Rule, 1968. Pursuant to direction of the Tribunal in Original Application No.695/2010 the mercy petition was considered by the President, who rejected the same.

6. In the Original Application, the petitioner's stand was that his unauthorized absence was not wilful as he was absent on account of sickness of his mother and wife. According to him the medical certificates were not considered. He would also state that the penalty is excessive and cannot entail removal from service.

7. On the other hand it is the case of the respondents before the Tribunal that the petitioner had been absenting himself from duty without information from April 17, 1996 onwards. The office had advised the petitioner through a registered letter dated May 15, 1996 sent to his last known address to report for duty. The petitioner failed to report for duty.

8. According to them the Inquiry Officer had proved the charge(s) against the petitioner. They have specifically stated, that during the employment the petitioners had mentioned the reasons of his absence

during the said period to be sickness of his wife and mother but failed to produce any medical certificate(s) pertaining to the relevant period.

9. We have seen the copy of the Inquiry Officer's report wherein the Inquiry Officer has come to the following finding:

"As per office records, the employee is in the habit of remaining absence from his duty. Even though the employee was taken SF-5 enquiry on 21.02.1987, but he attended the same enquiry after 2½ month shocking lack of responsibility regarding his duty. The RAD letters which were not received by him be knowingly told by him to postman not to deliver him. He submitted medical certificates to the office and to me which about his wife and mother illness as under:

        (i)      21.12.1994 to 31.12.1994      Wife
        (ii)     11.01.1995 to 18.03.1995      Mother
        (iii)    19.03.1995 to 27.03.1995      Mother
        (iv)     30.03.1995 to 19.04.1995      -do-
        (v)      24.04.1995 to 28.06.1995      Wife
        (vi)     28.06.1995 to 24.12.1995      Mother
        (vii)    28.09.1995 to 24.12.1995      Mother
        (viii)   26.12.1995 to 30.12.1995      Wife

The above certificates were submitted to the office at the time of reporting for duty on 20.04.1995 whereas he should have sent these PMC from time to time along with his request for leave. The employee has failed to justify his failure in sending the leave application and the said PMC at the appropriate times.

On the other hand, a employee who is living in Delhi and so far from his working place could come to his office time to time to inform regarding his problem that his wife and mother are going under lag illness. But he did not take it as necessary. Even though he could send letters or take of rams if he did not have time but he

failed to do all these. This shows that the employee do not have responsibility towards his duty even this he was issued an another SF.5 due unauthorized absence."

10. The Disciplinary Authority while imposing the penalty of removal, vide its order dated July 10, 1998 has come to the following conclusion:

"It has also been established beyond doubt that you have become habitual offender for being unauthorized absent for one or the other reason. Despite being resident of Delhi, you have not bothered to resume duty/inform office or get your leave sanctioned It shows that you have no regards towards your duty. You have remained unauthorized absent repeatedly as under:-

        (a)     29-7-93 to 17-8-93
        (b)     21-4-94 to 17-3-96
        (c)     17-4-96 to 7-2-97
        (d)     28-11-97 to date

Your repeated absence has badly affected Railway work and I don't see any sign of your improvement. Your continuous absence shows that you are no more interested in Railway service."

11. Even while considering the mercy petition, wherein the petitioner has stated, (i) His unauthorized absence is not wilful; (ii) The order of Appellate and Revising Authorities are non speaking and the orders were issued without application of mind; and (iii) The penalty is excessive, the President was of the following view.

"As regards Shri Saini's contention in item (i) above, he has not produced any proof regarding the sickness of his wife and mother for the period of absence from 17.04.1996 to 22.08.1996. In the absence of any documentary proof, his contention is not acceptable. Even assuming that his contention is correct, this does

not give him a license to remain absent from duty without authority. He was expected to at least inform the administration bringing out his personal problems duly seeking proper leave. He failed to do so which shows his scant regard for office discipline.

As regards his submission in item (ii) above, under the rules, Appeal and Revision petition should be filed within 45 days of the order under challenge. Shri Saini, however, submitted his appeal and revision petition more than 3 months and 4 years respectively, i.e., much after the expiry of the time limit provided in the rules. His contention that the delay in filing appeal/revision petition was due to delayed receipt of the penalty/ appellate order is also not convincing inasmuch as the orders were sent to him at his residential address by registered post but these were advising that the addressee was not available despite repeated visit. His plea in this regard is therefore not acceptable.

With regard to his contention that the penalty is excessive, the charge-sheet dated 24.08.1996 itself highlighting that he was habituated to be on unauthorized absence time and again and despite departmental action taken against him in the past he did not show any improvement. He did not thus try to redeem himself despite opportunity having been given to him. The penalty imposed on him cannot therefore be considered as excessive."

12. The Tribunal in the impugned order has concluded that the Original Application is barred by limitation and has to be dismissed on that ground alone. Even on merits the Tribunal was of the view that the Original Application is without substance and after referring to the judgment of the Supreme Court reported as (2008) 8 SCC 469 State of Punjab vs. Dr.P.L.Singla, was of the view that full opportunity was given to the

petitioner to defend himself and since he did not give any evidence in support of his defence he has to face the consequences.

13. We agree with the conclusion of the Tribunal, more particularly in the given facts. The Authorities have applied their mind properly and they found that the petitioner has been unauthorizedly absent without justifiable reason which indeed would make the unauthorized absence as wilful. We do not see any reason to interfere with the impugned order.

14. The writ petition is accordingly dismissed.

15. No costs.

(V.KAMESWAR RAO) JUDGE

(PRADEEP NANDRAJOG) JUDGE AUGUST 06, 2013 km