Delhi High Court
Union Of India & Ors. vs J.R.Dhiman on 14 May, 2013
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: May 14, 2013
+ W.P.(C) 7992/2012
UNION OF INDIA & ORS. ..... Petitioners
Represented by: Mr.Amit Dubey, Advocate
versus
J.R.DHIMAN ..... Respondent
Represented by: In person.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG, J. (Oral)
1. To cover up their lapses, the Railway authorities have come out
with, if we may use the expression, a very funny policy guideline dated
January 13, 1993. If Indian Railways misplace and lose the Service Book
and the Leave Account of a Railway servant, the policy prescribes that
Leave Account would be regenerated, with reference to such record which
may be available, and extrapolating the data generated for a given period to
the entire period for which the leave account is not available.
2. Now, from a scientific approach, there is no rationale in the
policy decision for the reason a Government servant is not presumed to be
falling sick repeatedly or taking repetitive leave merely because in a
particular year, for a particular duration, he has fallen sick or takes leave.
Let us illustrate with a notional example. 'A' joins service on January 01,
2000. He is aged 25 years. He is a bachelor. Finding a match and getting
married on January 01, 2003, and for purposes of marriage and honeymoon
'A' takes leave for 15 days. Leave record for the previous or the succeeding
years cannot be re-generated with reference to 'A' taking leave for his
marriage. The reason is obvious. Nobody gets married every year. Further,
this very 'A' is blessed with a child in the year 2005 and at the time of birth
takes paternity leave of 15 days. This period of paternity leave cannot be a
representative sample to notionally determine leave account by 'A' in the
preceding and succeeding years.
3. What had happened in the instant case was that J.R.Dhiman's
(the respondent) leave record went missing for the period January 07, 1972
to April 22, 1999. Re-constructing the same, the department found that
between the period July 12, 1997 to March 5, 1999 he had availed 90 days
paid leave; 31 days casual leave and 10 days sick leave. Taking this to be
the representative data, the leave account for the entire period January 07,
1972 to April 22, 1999 has been re-generated.
4. Suffice would it be to state that a sample has to be
representative of the whole. If a sample is not representative of the whole, it
would be sample improperly so called and not a sample properly so called.
5. Pertaining to sickness, leave obtained on account of births,
deaths and marriages in families, no leave period can be a representative
segment to be guiding as to what presumptive leave would have been taken
in the other years.
6. We have asked learned counsel for the petitioner as to why the
period between July 12, 1997 to March 5, 1999 when J.R.Dhiman appears to
have taken leave alone was considered and not the remainder post April 22,
1999; our reasons for the query is that the leave account for the period
January 07, 1972 to April 22, 19999 has been lost. What if J.R.Dhiman did
not avail any leave after March 05, 1999. We need to highlight that his
leave account had to be recast till he was in service which probably was the
year 2006.
7. There is no answer.
8. Under the circumstances, the view taken by the Tribunal is
correct. It would be impermissible to penalise a Railway employee for no
fault of his. Railways are the custodian of the leave record and are
responsible for it. A policy to reconstruct the leave record has to be
rationale and not irrational. The writ petition is dismissed but without there
being any order as to costs.
CM No.19983/2013 (stay)
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(V.KAMESWAR RAO)
JUDGE
MAY14, 2013
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