Ram Kumar vs Union Of India & Ors
2016 Latest Caselaw 1574 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                    WP(C) 4835/2015

%                               Date of Decision: 26th February, 2016


        RAM KUMAR                                ...Petitioner
            Through :       Mr.Amit Kumar, Advocate


                     Versus

        UNION OF INDIA & ORS                           ...Respondents
            Through :

        CORAM:
        HON'BLE MR. JUSTICE SANJIV KHANNA
        HON'BLE MR. JUSTICE NAJMI WAZIRI

SANJIV KHANNA, J.

1. Ram Kumar by this petition impugns order dated 30th July, 2014

passed by the Central Administrative Tribunal, Principal Bench, Delhi

['Tribunal', for short], whereby OA.No. 2810/2011 of the petitioner

was dismissed on several grounds.

2. The petitioner was appointed as a gangman in the North Central

Railway on 22nd October, 1980. On 3rd July, 2003, he went on leave

for two days, but did not return to join duty thereafter.

3. The absenteeism came to the notice of the respondents on verification

of Standard Form No. 5 dated 11th October, 2003.

4. On 16th September, 2004, the petitioner was served with the show

cause notice and proceedings were initiated against him under the

Railway Servants (Discipline and Appeal) Rules, 1968. The memo of

charge dated 11th October, 2003 was served on the petitioner under

acknowledgement. This fact is not disputed. As per the respondents,

the petitioner did not appear and ex parte enquiry was held and report

submitted. By letter dated 16th September, 2004, a copy of the enquiry

report was sent to the petitioner affording him an opportunity and right

to sumbit his representation. Receipt of the report and letter dated 16th

September, 2004 is accepted. As per the respondents, no reply or

representation was received for a period of nearly two months. The

Assistant Divisional Engineer, Dholpur, as the disciplinary authority

by order dated 9th December, 2004 imposed penalty of removal from

service. This order was communicated to the petitioner on 20th

December, 2004.

5. It is the case of the petitioner that he had responded and submitted a

reply dated 14th October, 2004 to the enquiry report and along with the

said reply had enclosed UPC receipts and communications, which he

claimed were written by him seeking leave. As per the respondents,

neither letter dated 14th October, 2004 nor any application or letters

seeking leave had been received by them. The UPC receipts, we

observe and hold, are rather debatable. The medical certificates of the

wife relied by the petitioner were issued by private doctors in Agra

and Aligarh and are dated 30th September, 2004, 5th October, 2004 and

relate to subsequent visits on 10th December, 2004 and 11th February,

2005. There is also a certificate of a doctor at Aligarh that the

petitioner's wife was under her treatment for vertigo from 5 th October,

2004 till the date of the said certificate, i.e., 2 nd March, 2005. These

certificates do not pertain to the period July, 2003 to August, 2004.

6. The petitioner claims that he had filed an appeal challenging the order

of removal from service passed by the disciplinary authority dated 9 th

December, 2004. The purported appeal was filed after about four

months and was addressed to the Senior Divisional Engineer in form

of a letter of request dated 3rd March, 2005 seeking indulgence on

humanitarian grounds and that he would be careful and would not

indulge in any such practice in future. A reading of the aforesaid letter

dated 3rd March, 2005 would reflect that it was in the nature of a

mercy petition, rather than a statutory appeal on merits. This letter, as

per the petitioner, was followed by another letter dated 15th June,

2005.

7. The petitioner thereafter did not follow up and get in touch with the

said officer or make enquiries about disposal of the said appeal. After

awaiting for about four years, petitioner's wife filed an application

under the Right to Information Act. This was followed by two more

applications on 27th /28th July, 2009 and 5th April, 2010. We are rather

surprised and find it strange that the appeal had remained pending for

over four years. Disposal should not have taken so much time. At the

same time, we would record our hesitation and it does appear that the

petitioner himself had remained passive. He did not follow up.

Indicative that he had lost interest. The appeal was dismissed and the

order of penalty of removal from service was upheld by the appellate

vide order dated 21st April, 2010. The petitioner claims that he was

intimated and had received the papers on 13th July, 2010 only, though

his wife had received the appellate order on 22nd April, 2010. After

awaiting for more than a year, the petitioner filed the Original

Application before the Tribunal on 29th July, 2011.

8. Impugned order of the Tribunal records that the petitioner's Original

Application was dismissed in default on 2nd May, 2012. After nearly

two years, an application of restoration was filed on 4th March, 2014

and the same was allowed, subject to payment of cost of Rs.1,000/-. It

is pertinent to mention that the petitioner did not avail of his right to

challenge the order of the appellate authority by way of revision as

provided by the statute, i.e., Railway Servants (Discipline and Appeal)

Rules, 1968. The petitioner had directly approached the Tribunal

without availing the said remedy.

9. Looking from all angles, we find that the writ petition has no merit

and there is no reason and ground to interfere with the impugned order

dated 30th July, 2014 passed by the Tribunal dismissing OA No.

2810/2011. No order as to costs.

(SANJIV KHANNA) JUDGE

(NAJMI WAZIRI) JUDGE February 26, 2016 Ssn/VKR