Attar Singh vs State Of Nct Of Delhi And Ors.
2013 Latest Caselaw 227 Del

$~R-39
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of Decision: January 15, 2013

+                            W.P.(C) 4512/2001

      ATTAR SINGH                                            ..... Petitioner
                             Represented by: Mr.Rakesh Dahiya, Advocate

                    versus

      STATE OF NCT OF DELHI AND ORS.              ..... Respondents
                    Represented by: Mr.V.K.Tandon with Mr.Yogesh
                    Saini, Advocates
      CORAM:
      HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
      HON'BLE MS. JUSTICE VEENA BIRBAL

PRADEEP NANDRAJOG, J.

1. Heard learned counsel for the parties.

2. The charge against the petitioner for which he faced a departmental inquiry was that on being transferred to the 10th Battalion DAP and relieved from the Central District on April 03, 1997, he did not report to the Commandant of the 10th Battalion DAP and was accordingly marked absent. In spite of notices issued requiring him to immediately report for duty on August 12, 1997 and September 23, 1997, the petitioner continued to be absent till he joined duty on November 10, 1997. He was absent for 7 months and 6 days. Having joined duty on November 10, 1997 petitioner started absenting himself once again on November 29, 1997 till January 06, 1998 i.e. for a period of 37 days.

3. At the departmental inquiry the Department, as per record of the inquiry produced before us, examined 4 witnesses who with reference to the service record of the petitioner proved as per the indictment.

4. The petitioner examined 3 witnesses in defence being Tara Chand DW-1 who claims to be the brother-in-law of the petitioner and stated that the condition of the mother of the petitioner became serious on April 03, 1997 due to which the petitioner came to his house and that on November 29, 1997 the petitioner fell ill. Constable Ramesh Chand DW-2 deposed that on April 03, 1997 a relative of the petitioner had come to the Central District to inform him that his mother was seriously unwell. Constable Kishan Singh DW-3 deposed that on April 27, 1997 a relative of the petitioner had told him that the mother of the petitioner was seriously unwell.

5. Suffice would it be to state that the record of inquiry would evidence that full opportunity was granted to the petitioner to participate at the inquiry and he never attempted to prove any medical documents pertaining to he being suffering from paralysis, a stand which he pleaded before the Tribunal.

6. Needless to state, the Inquiry Officer held that the charge was established and being a member of an armed force i.e. Delhi Police the view taken by the Disciplinary Authority was that the misconduct was serious. Penalty levied upon the petitioner is one of removal from service against which appellate remedy failed.

7. O.A. No.385/1999 filed by the petitioner has been dismissed by the Tribunal as per impugned order dated October 27, 2000, holding that the medical certificates sought to be shown to the Tribunal as a justification for unauthorised absence could not be looked into inasmuch as the same were never presented as documents in defence before the Inquiry Officer. Though not expressly stated by the Tribunal in so many words, the signature tune is obvious. If the petitioner had filed the medical record pertaining to his sickness, he would have been obliged to prove the same and in this

manner authenticity of the documents which he wanted the Tribunal to rely upon could have been tested.

8. That apart, we find that 3 defence witnesses examined by the petitioner never spoke of petitioner being unwell save and except on November 27, 1997. As we have noted hereinabove the 3 defence witnesses spoke of petitioner's mother being unwell and this information conveyed to the petitioner on April 3, 1997 i.e. the date on which he started absenting himself. Now, if the petitioner's mother was unwell we see no reason why he could not apply for leave before he left for his village in District Rewari, Haryana which is at a distance of about 140 kilometres from Delhi. No medical documents pertaining to the medical infirmity of the mother were produced at the inquiry. We concur with the view taken by the Tribunal that the facts and circumstances warranted the petitioner to be imposed penalty of removal from service.

9. However, we notice that the petitioner joined service in Delhi Police on February 15, 1989 and the penalty of removal from service was inflicted upon him on June 8, 1998.

10. Rule 41 of the CCS Pension Rules, 1972 permit a compassionate allowance to be sanctioned to a government servant who is dismissed or removed from service which amount if sanctioned cannot exceed 2/3rd of the pension admissible if the government servant was retired on compensation pension. Rule 39 of the Rules provide for compensation pension and the said rule do not have any minimum qualifying service.

11. Thus, while dismissing the writ petition we observe that if the petitioner were to file a representation seeking compassionate allowance the authority competent to take a decision would decide the said representation keeping in view Rule 41 of the CCS Pension Rules as also Rule 39 thereof.

12. For the benefit of petitioner we would only highlight that while making a representation for compassionate allowance to be sanctioned he should not harp on the merits of his being removed from service inasmuch as the penalty has been upheld by us. He should bring such facts to the notice of the competent authority as would make out his being a case deserving of special consideration i.e. the petitioner must inform his current pecuniary position, immovable property if any he possesses, the number of dependents which he has to support, etc. Decision on the representation if any made would be taken within 8 weeks of the representation being received.

13. No costs.

14. Dasti.

PRADEEP NANDRAJOG, J

VEENA BIRBAL, J JANUARY 15, 2013 srb