Amrik Singh vs Dtc
2013 Latest Caselaw 1129 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of decision: March 06, 2013
+                         W.P.(C) 788/2013
       AMRIK SINGH                                         ..... Petitioner
                          Represented by: Mr.Piyush Sharma, Advocate

                          versus

       DTC                                             ..... Respondent
                          Represented by: Ms.Avnish Ahlawat, Advocate
                          with Ms.Latika Chaudhary, Advocate.

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

PRADEEP NANDRAJOG, J. (ORAL)

1. On February 11, 2013 we had passed the following order:-

"1. Learned counsel for the writ petitioner states that if the penalty of removal from service is converted to one of compulsory retirement with pension as well as gratuity directed to be paid in terms of Rule 40 of the CCS Pension Rules, 1972 the writ petitioner would not press the writ petition on merits.

2. Learned counsel for the respondent states that she would obtain instructions whether the petitioner was a member of the pension scheme.

3. Re-notified for March 6, 2013."

2. Learned counsel for the respondent states that she has obtained instructions. The petitioner is a member of the Pension Scheme. As regards the offer by the petitioner that if the penalty of removal from service could

be converted to one of compulsory retirement with pension and gratuity to be paid as envisaged under Rule 40 of the CCS (Pension) Rules, 1972, learned counsel for the respondent states that she has no instruction whether the department is willing to accept the offer.

3. It is settled law that the purpose of penalty is to chasten the delinquent employee and at the same time to set an example for others to remain disciplined. But, where disproportionate penalties are levied it causes unrest in the organization.

4. Why do disciplinary service rules vest the authorities with a range of penalties to be levied; censure > withholding increments without future effect >withholding increments with cumulative effect > reduction to a lower stage in pay with or without cumulative effect > reduction to a lower post either permanently or temporarily > compulsory retirement > removal from service > dismissal from service. The reason is obvious. The nature and gravity of the wrong, the moral turpitude of the wrong, loss or damage caused to the organization etc., are the factors which have a bearing on the penalty to be levied. Similarly, past service rendered has also to be taken note of. In other words, a penalty must weigh all the pros and the cons.

5. The petitioner joined service as a Driver under DTC on July 1, 1979 and serve faithfully and without a blemish till he obtained 47 days leave on September 15, 2003 till October 31, 2003, requiring him to report back for duty on November 01, 2003. Before taking leave, on September 11, 2003 he sought permission to leave the country to meet his son in the United States of America. In fact, much prior thereto on August 8, 2003, he had submitted an application seeking voluntary retirement with effect from September 1, 2003 which was declined because of paucity of drivers, as stated by DTC.

6. Since the petitioner has used the word 'voluntary retirement' as also the word 'voluntary resignation' in his representation, with respect to the representation being a resignation, petitioner was informed that the same was not being accepted inasmuch as his pensionery benefits would be adversely affected. But, when meaningfully read, the request made by the petitioner is to be voluntarily retired.

7. Be that as it may, the petitioner went to the United States of America, love of his son took him there. The wealth of his son and the glamour of the USA led him to stay on in America and the result was the petitioner being unauthorisedly absent. A charge-sheet prepared on May 24, 2007 but signed by the competent authority on February 11, 2008 was issued alleging misdeamnour of unauthorised absence. The petitioner could not be served because his address with the department was incomplete. Without publishing the charge-sheet in a newspaper or even a citation that he was charge-sheeted, Inquiry Officer was appointed. Even the Inquiry Officer could not serve the petitioner. He completed an ex-parte inquiry and submitted a report. Relying thereon the petitioner was removed from service.

8. The challenge before the Tribunal has failed.

9. From the facts noted by us hereinabove it would be apparent that the misdemeanour has no element of a moral turpitude. The offence is not one where a pecuniary loss is caused to DTC. The wrong is of a kind where the penalty in the extreme ought not to have been levied. It had to be kept in mind that when he unauthorisedly absented himself from November 01, 2003, the petitioner had rendered more than 24 years service.

10. Weighing all the pros and cons we are of the opinion that in the

peculiar facts of the instant case the appropriate penalty to be levied upon the petitioner should be that of compulsory retirement with further direction that the petitioner would be entitled to pension as well as gratuity being 2/3 rd of the pension and gratuity which petitioner would receive on the date of his compulsory retirement.

11. Accordingly, we substitute the penalty of removal from service to one of compulsory retirement, with further direction that gratuity and pension would be paid to the petitioner as per Rule 40 of the CCS (Pension) Rules, 1972 which would be 2/3rd as directed above.

12. Arrears would be paid within 12 weeks from today.

13. No costs.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 06, 2013 skb