Arun Kumar Sharma vs Union Of India And Anr
2013 Latest Caselaw 139 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision : January 09, 2013

+                            W.P.(C) 4400/2012

       ARUN KUMAR SHARMA                               ..... Petitioner
               Represented by: Mr.Vipin Kumar and Mr.Jitender
               Kumar, Advocates.

                    versus

       UNION OF INDIA AND ANR                        ..... Respondents
                Represented by: Mr.S.K.Dubey, Ms.Zeenat Masoodi,
                Mr.Malay Dwivedi and Ms.Bhagyshree Pati, Advocates.

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J. (Oral)

WP(C) No.4400/2012

1. Charges levied, as per the charge memorandum dated September 16, 2009 against the petitioner read as under:-

"Article I: That the said Shri Arun Kumar Sharma, Assistant, while working in RM Section of the Ministry of External Affairs, was on unauthorized absence from duty w.e.f. 12.07.2005 to 25.07.2005.

Article II: That the said Shri Arun Kumar Sharma, Assistant, was directed to report for duty at PAI division of the Ministry of External Affairs, vide order No.Q/PC/662/2004 dated 28.07.2005. However, Shri Sharma did not report for duty at the PAI Division of the Ministry and was on unauthorized absence from duty from 28.07.2005 to 06.10.2005.

Article III: That the said Shri Arun Kumar Sharma, Assistant, was directed to report for duty at the SAARC Division of the Ministry of External Affairs vide office order No.Q/PC/662/2004 dated 07.10.2005. However,

Shri Sharma did not report for duty at the SAARC Division of the Ministry and was on unauthorized absence from duty from 07.10.2005 to 01.05.2006.

Article IV: That the said Shri Arun Kumar Sharma, Assistant, while working in SE-SM Section of the Ministry of External Affairs, was on unauthorized absence from duty on 05.05.2006 and again from 09.05.2006 to 19.05.2006.

Article V: That the said Shri Arun Kumar Sharma, is on unauthorized absence from duty since 20.05.2006."

2. In spite of being served with the charge-sheet the petitioner never appeared and suffered an ex-parte report being submitted against him.

3. We need not discuss the report holding that the charges were proved for the reason learned counsel for the petitioner concedes that the evidence, which was nothing else other than the leave account of the petitioner would evidence that between July 08, 2005 till January 25, 2010 the petitioner was absent for 1456 days as under:-

S.No. Period of unauthorized absence Number of days

Total 1456 days

4. The period has been treated as dies-non. Petitioner has been dismissed from service.

5. After the penalty was levied the petitioner made representations

and along therewith filed medical record pertaining to him which establishes that the petitioner was suffering from and continues to suffer from Bipolar Effective Disorder, and as per a certificate dated December 06, 2012 issued by Dr.Ram Manohar Lohia Hospital the mental disability assessed is 55%.

6. Now, the petitioner had joined service in July 1987. The order dismissing him from service is dated August 24, 2010 and it has been directed by a subsequent order dated October 19, 2012 that the period as tabulated above in para 3 comprising 1456 days shall be treated as dies-non.

7. Now, a person suffering from 55% mental disability due to Bipolar Effective Disorder would hardly be expected to realize the consequences of his action or defend himself at the inquiry. It is unfortunate that the near and dear ones of the petitioner or his friends did not guide him to seek a discharge from service due to mental disability, which would have to be treated as a disability justifying petitioner's services being dispensed with. Had he done so, or had the Head of the Department directed the petitioner to be brought before a Medical Review Board, the department would have had a disability assessed to discharge petitioner from service and give him such benefits as would be due.

8. Now, the penalty levied upon the petitioner is under the CCA (CCS) Rules 1965 and as per Rule 11, of the many major penalties, vide clause-vii the penalty of compulsory retirement is listed.

9. Rule 40 of CCS (Pension) Rules reads as under:-

"40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement.

(2) Whenever in the case of a Government servant the President passes an order (whether original, appellate

or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the Union Public Service Commission shall be consulted before such order is passed.

Explanation - In this sub-rule, the expression 'pension' includes gratuity.

(3) A pension granted or awarded under sub-rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of Rupees three thousand and seventy five per mensem."

10. Since pensionable service is 20 years, which petitioner would be deemed to have rendered; having joined service in July 1987 and being dismissed from service on August 24, 2000, but for the subsequent order dated October 19, 2012 which requires 1456 days tabulated in para 3 above to be treated as dies-non, we dispose of the writ petition converting the penalty levied upon the petitioner to one of compulsory retirement with effect from August 24, 2010 and we further direct that the period treated as dies-non as per order dated October 19, 2012 would no longer be treated as dies-non for purposes of pensionary benefits. However, no wages would be paid for said period. We further clarify that pension would be paid to the petitioner treating his service to be 20 years and not 23 years, which it would be because date of compulsory retirement is being retained by us as the date when penalty was levied. We are so restricting the pensionable service to strike a balance between the interest of the petitioner and the respondents. The interest of the petitioner being his having rendered 17 years actual service and thereafter incurring the unfortunate disability which adversely affected his mental faculties and the interest of the respondent being not to burden the respondent with a recurring pecuniary liability beyond the minimum.

11. We also sanction full compensation pension to be paid to the petitioner and for which arrears would be computed and paid within four

months and future pension paid as per law.

12. No costs.

CM No.9097/2012 Since the writ petition stands disposed of, instant application seeking ad-interim stay of the impugned order till disposal of the writ petition stands disposed of as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(VEENA BIRBAL) JUDGE JANUARY 09, 2013//dkb//