Delhi High Court
Surender Kumar vs Gnct Of Delhi & Ors. on 15 July, 2014
Author: Vipin Sanghi
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 15.07.2014
% W.P.(C) 628/2014
SURENDER KUMAR ..... Petitioner
Through: Mr. Anil Kumar Singal, Advocate.
versus
GNCT OF DELHI & ORS ..... Respondents
Through: Mr. Amiet Andlay, Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
S. RAVINDRA BHAT, J. (OPEN COURT)
C.M. No. 8571/2014
1. Issue notice. Mr. Amiet Andlay accepts notice.
2. After hearing learned counsel, the Court is of the opinion that
the interest of justice would be subserved in accepting the request for
restoration. The application is, accordingly, allowed and the writ
petition is restored.
W.P.(C) 628/2014
3. The petition challenges the order of the Central Administrative
Tribunal (CAT) dismissing his application. He was charged with
misconduct, i.e. unauthorised absence for 265 days.
4. The petitioner was a Constable at the relevant time when he
absented from duty for a long period - 265 days in two spells. This
led to issuance of the chargesheet. In the departmental inquiry, the
plea urged by the petitioner was of serious illness, i.e. Jaundice. In
support of this plea, he relied upon a large number of medical
certificates. The Inquiry Officer held that the charge was proved; the
disciplinary authority, accordingly, directed the petitioner's dismissal
from service. His appeal to the designated appellate authority met
with no success. He, therefore, approached the CAT which made the
impugned order.
5. It is urged by the petitioner's counsel that the impugned order is
erroneous because it overlooked the circumstance that the
departmental proceedings had not categorically rejected the medical
certificates which were pleaded before the Inquiry Officer. In these
circumstances, it was urged by the counsel that it could be said that
the absence was wilful. It was for compelling reasons beyond the
employee's control. It was alternatively argued that since the charge
of unauthorised absence did not involve moral turpitude, the
authorities ought to have considered a less severe punishment so as to,
at least, entitle the petitioner the benefit of 22 years unquestioned
service rendered by him that would have enabled him to draw
proportionate pension.
6. Learned counsel lastly relied upon the judgment of the Supreme
Court in Mahinder Dutt Sharma Vs. Union of India & Others, Civil
Appeal No. 2111/2009 decided on 11.04.2014.
7. This Court is of the opinion that the petitioner's submission
with respect to the merits of the findings recorded in the departmental
proceedings are without any substance. There is no dispute that the
petitioner never intimated his employer, i.e. the respondent about the
cause for his absence. Even if, in the first instance, the absence was
for 10-15 days, he was under a duty to intimate the respondents about
the possibility of a long absence, and if necessary and called upon to
do so, have a medical evaluation done. Instead, he chose to stay away
from duty for 265 days in two spells and belatedly reported on the
assumption that all was well. He did not join duty despite absentee
notices. That approach could not have been countenanced. Mere
issuance of a medical certificate does not confer a right on the
government servant to continue to remain on medical leave when such
leave is not allowed. In the circumstances, the contention that the
medical certificates had to be specifically rejected, has no force. The
respondent also considered the fact that on 31 previous occasions, the
petitioner had similarly remained absent unauthorisedly. This
established that the petitioner was a habitual absentee.
8. As far as the plea regarding less severe or harsh punishment
goes, we notice that the disciplinary authority took note of certain
facts and consciously adopted the course that it did while issuing the
dismissal order. The decision in Mahinder Dutt Sharma (supra)
rendered in the context of applicability of Rule 41 of the CCS
(Pension) Rules, which authorises the competent authority to sanction
compassionate allowance, in cases where employees are dismissed
but have rendered long years of service, to some extent, is of
relevance. The Supreme Court pertinently observed as follows:
"13. In our considered view, the determination of a
claim based under Rule 41 of the Pension Rules, 1972,
will necessarily have to be sieved through an
evaluation based on a series of distinct considerations,
some of which are illustratively being expressed
hereunder:-
(i) Was the act of the delinquent, which resulted in the
infliction of the punishment of dismissal or removal
from service, an act of moral turpitude? An act of
moral turpitude, is an act which has an inherent
quality of baseness, vileness or depravity with respect
to a concerned person's duty towards another, or to the
society in general. In criminal law, the phrase is used
generally to describe a conduct which is contrary to
community standards of justice, honesty and good
morals. Any debauched, degenerate or evil behaviour
would fall in this classification.
(ii) Was the act of the delinquent, which resulted in the
infliction of the punishment of dismissal or removal from
service, an act of dishonesty towards his employer?
Such an action of dishonesty would emerge from a
behaviour which is untrustworthy, deceitful and
insincere, resulting in prejudice to the interest of the
employer. This could emerge from an unscrupulous,
untrustworthy and crooked behaviour, which aims at
cheating the employer. Such an act may or may not be
aimed at personal gains. It may be aimed at benefiting
a third party, to the prejudice of the employer.
(iii) Was the act of the delinquent, which resulted in the
infliction of the punishment of dismissal or removal from
service, an act designed for personal gains, from the
employer? This would involve acts of corruption, fraud
or personal profiteering, through impermissible means
by misusing the responsibility bestowed in an employee
by an employer. And would include, acts of double
dealing or racketeering, or the like. Such an act may
or may not be aimed at causing loss to the employer.
The benefit of the delinquent, could be at the peril and
prejudice of a third party.
(iv) Was the act of the delinquent, which resulted in the
infliction of the punishment of dismissal or removal from
service, aimed at deliberately harming a third party
interest? Situations hereunder would emerge out of
acts of disservice causing damage, loss, prejudice or
even anguish to third parties, on account of misuse of
the employee's authority to control, regulate or
administer activities of third parties. Actions of
dealing with similar issues differently, or in an
iniquitous manner, by adopting double standards or by
foul play, would fall in this category.
(v) Was the act of the delinquent, which resulted in the
infliction of the punishment of dismissal or removal
from service, otherwise unacceptable, for the
conferment of the benefits flowing out of Rule 41 of the
Pension Rules, 1972? Illustratively, any action which is
considered as depraved, perverted, wicked, treacherous
or the like, as would disentitle an employee for such
compassionate consideration."
9. Having regard to the above and the statutory considerations
which the competent authority has to consider in Rule 41, we are of
the opinion that even though the petitioner's argument with respect to
the legality of his dismissal lacks merit, the competent authority
should consider his request for compassionate allowance and pass
appropriate orders in that regard. While doing so, the said authority
shall take into consideration Rule 41 and the other relevant matters
spelt out by the Supreme Court in Mahinder Dutt Sharma (supra).
The order shall be made and communicated directly to the petitioner
within six weeks from today.
10. No other plea was urged by the petitioner.
11. The writ petition is disposed of in terms of the above directions.
S. RAVINDRA BHAT, J
VIPIN SANGHI, J
JULY 15, 2014
B.S. Rohella
