Govt. Of Nct Of Delhi & Ors. vs Neeraj Kumar
2013 Latest Caselaw 4025 Del

$~35
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                            Decided on: 09.09.2013


+      W.P.(C) 5670/2013, CAV.788/2013, C.M. APPL. 12542/2013
       GOVT. OF NCT OF DELHI & ORS.              ..... Petitioners

                         Through : Ms. Avnish Ahlawat, Advocate.

                         versus

       NEERAJ KUMAR                              ..... Respondent

Through : Sh. K.P. Gupta, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

%

CAV.788/2013 Learned counsel for the caveator has put in appearance. Cav. 788/2013 accordingly stands discharged. W.P.(C) 5670/2013, C.M. APPL. 12542/2013 (for stay)

1. The Govt. of NCT of Delhi is aggrieved by an order of the Central Administrative Tribunal (CAT) dated 08.04.2011. By the impugned order, CAT had quashed an order of penalty imposed upon

W.P.(C) 5670/2013 Page 1 the respondent/applicant on the ground that the findings of the disciplinary authority warranted the penalty of reduction of pay for two years as well as denial of increments for the said period. In addition, the Govt. of NCT of Delhi had declared that the period of absence should be treated as dies-non.

2. It was argued that the findings of the CAT are unfounded. The Govt. of NCT of Delhi relied upon the findings of the Inquiry Officer, who had partially held the respondent/applicant guilty of the misconduct. It was submitted that the disciplinary authority in the present case applied itself to the circumstances and took note of all facts brought on the record, including the claim for unavoidable absence on account of illness. It was submitted that in these circumstances, the CAT, based upon the well established principles of non-interference with orders of penalty, should not have taken upon itself to apprise the facts, and substituted a minor penalty.

3. This Court has considered the circumstances. The petitioner was permitted leave for a period upto 29.10.2005. Before the expiry of the period, he applied for extension and was granted leave till 21.01.2006 on the basis of a medical advice from Bethany Medical Centre, NC, USA on account of treatment for "acute back pain secondary to facet arthritis of the lumbar spine". Apparently his wife, writing for and on his behalf on 07.02.2006, sought further extension and relied upon medical report given by the same doctor of the same Medical Center. The medical report is not in dispute; it was apparently given to the Govt. of NCT of Delhi. It stated that the applicant should not be permitted to travel on account of Facet

W.P.(C) 5670/2013 Page 2 Arthritis for a period of 16 weeks. The Inquiry Officer was of the opinion that the latter period - 21.01.2006 onwards was not explained. The charge made out against the applicant was that at the time of grant of leave upto 30.10.2005 he had agreed not to seek extension. The Inquiry Officer, therefore, felt that the first charge was not warranted since extension was in fact granted and the administration felt that the request was reasonable. The disciplinary authority, however, disagreed with the findings of the Inquiry Officer to the extent of exoneration and imposed penalty of withholding of increment as well as order of reduction in time scale of pay for two years.

4. The CAT in the operative portion of its orders - impugned in the present case, stated as follows:

"10. This is a case where a teacher had overstayed in USA for about six months. It is not as if he has absconded for substantial period and after expiry of his initial period he had applied for leave, the same was granted and thereafter when he again requested for extension of leave on the same ground that was rejected.

It is not a case where the applicant has irresponsibly and untraced remained outside the country but he made an application for extension of leave and immediately after that when the same was not granted, he came and joined duty. It is not a case where the applicant has committed any serious irregularity, like misappropriation or accepting illegal gratification. Such being the case, we do not feel desirable to remand the matter and start one more round of litigation from this stage. In view of the nature of violation committed by the applicant, we feel that the penalty imposed on him can be converted into a minor penalty. As already referred, the applicant has committed only the irregularity of remaining outside the

W.P.(C) 5670/2013 Page 3 country after expiry of the leave, which was on medical grounds. He applied for extension of leave, which was granted. Again when he requested for further extension of leave, that was rejected and immediately after that period, he came and joined duty. Thus, in the circumstances, punishment imposed is not commensurate with the violation committed by the applicant.

11. In the circumstances, we hold that it is a case for imposing a punishment of censure on the applicant setting aside the punishment imposed by the disciplinary authority, which was confirmed by the appellate authority. Accordingly, the penalty of reduction to a lower stage in the time sale of pay for a period of two years with further directions that he will not earn increments of pay during the above period and on the expiry of this period, the reduction will have the effect of postponing the future increments of his pay with further orders and that the period of absence from 22.01.2006 to 18.06.2006 shall be treated as dies non not to amount to break in service, is set aside. However, for the period from 22.01.2006 to 18.06.2006, he shall be granted any kind of leave. The applicant is imposed a penalty of censure and consequent to the modification of the penalty, the applicant shall be entitled for all the benefits that were not granted to him on account of imposition of above penalty."

5. This Court has carefully considered the submissions as well as the materials on record. The certificate issued by the doctor in the US as well as the letter seeking extension written by the applicant's wife are on the record. The inquiry proceedings nowhere discusses these documents; neither the Inquiry Officer nor the disciplinary authority categorically rejected the explanation of the applicant that he was in fact suffering from Facet Arthritis. In these circumstances, this Court

W.P.(C) 5670/2013 Page 4 is of the opinion that the CAT's interference with the order of penalty on the ground that it was disproportionate cannot be found fault with. In the final analysis, CAT has substituted the penalty imposed by the disciplinary authority to one of censure. The Court sees no reason to interfere with the impugned order. The writ petition and pending application are accordingly dismissed.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) SEPTEMBER 09, 2013 'ajk'

W.P.(C) 5670/2013 Page 5