Delhi High Court
Ishu Agarwal vs National Textile Corporation ... on 20 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: April 20, 2018
+ W.P.(C) 3895/2018
ISHU AGARWAL ..... Petitioner
Through: Ms. Rani Chhabra, Advocate
versus
NATIONAL TEXTILE CORPORATION LIMITED AND ORS.
.....Respondents
Through: Nemo
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
(ORAL)
1. On the charge of unauthorized absence from duty, petitioner, who
was posted as Assistant Manager (Marketing) in respondent-Corporation
in Delhi, was departmentally tried and since petitioner did not participate
in the Inquiry, therefore, on the basis of ex parte inquiry, the Disciplinary
Authority has inflicted the penalty of removal from service on 17 th
November, 2015. Petitioner's removal was to relate back to the date of
unauthorized absence from duty i.e. 25th June, 2013. Against penalty
order of 17th November, 2015 (Annexure P-18), petitioner had preferred
statutory appeal (Annexure P-23), which stands dismissed vide impugned
order of 26th August, 2016 (Annexure P-26).
2. To explain the delay in challenging impugned order of 26 th August,
2016, petitioner's counsel has drawn attention of this Court to paragraphs
No.55 to 59 of the writ petition, wherein it is averred that after receiving
impugned order, petitioner had filed an application under the Right to
Information Act, 2005 (for short 'the RTI Act') seeking certified legible
photocopies of letters of 16th September, 2013 and 6th May, 2015, copy of
investigation report, copy of complete proceedings and addenda of 14 th
June, 2016. As per RTI Reply of 4th November, 2016 (Annexure P-28),
the information sought was supplied. Attention of this Court is drawn to
RTI Reply of 27th September, 2017 (Annexure P-29) to point out that
Disciplinary Authority i.e., Sh. Y.S. Sirohi had already retired on 31st
January, 2016 and so, there was no occasion for the Disciplinary
Authority to have any discussion with the Appellate Authority on
petitioner's appeal.
3. The challenge to orders of Disciplinary Authority as well as
Appellate Authority by learned counsel for petitioner is on the ground
that copies of the complete record of Inquiry including the
correspondence between the Presenting Officer, Inquiry Officer and
Disciplinary Authority was not furnished to petitioner. It is further
submitted that petitioner was not made aware that 11th May, 2015 was the
date fixed by the Inquiry Officer for ex parte hearing. It is also submitted
on behalf of petitioner that evidence recorded does not substantiate the
charge framed against petitioner.
4. The precise submission of petitioner's counsel is that due to illness
of son, petitioner was forced to proceed on leave and could not join back
the duty, while leaving her ailing son and that respondent ought to have
sanctioned 'leave without pay'. So, it is submitted that the penalty
inflicted is too harsh and disproportionate as the leave was sought by
petitioner on genuine ground. It is thus submitted by petitioner's counsel
that impugned order mechanically rejects petitioner's appeal.
5. Despite service of advance notice, there is no Representation on
behalf of the respondents.
6. Upon hearing and on perusal of orders of Disciplinary Authority as
well as Appellate Authority and the material on record, I find that
although petitioner was ex parte during the Inquiry, but the case of
petitioner ought to have been effectively considered by Appellate
Authority, which has not been done in impugned order. It is not the case
of respondents that petitioner had not applied for leave. Petitioner's
applications for leave have been turned down without considering the
aspect as to why she could not be allowed to proceed on leave of the kind
due or even on 'leave without pay'. Even, the aspect of proportionality of
the punishment inflicted upon petitioner, is not dealt with in impugned
order by Appellate Authority.
7. In the facts and circumstances of this case, it is deemed appropriate
to dispose of this petition with direction to Appellate Authority of
respondents to reconsider petitioner's appeal and to pass fresh order
thereon, while dealing with the aforesaid aspects and in particular, to
reconsider proportionality of the punishment inflicted. Let it be so done
within a period of six weeks from today and its fate be intimated to
petitioner within two weeks thereafter, so that petitioner may avail of the
remedies as available in law, if need be.
8. With aforesaid directions, this petition is disposed of.
(SUNIL GAUR)
JUDGE
APRIL 20, 2018
s
