Delhi High Court
Surender Singh vs The Govt. Of Delhi & Ors. on 12 October, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision : October 12, 2018
+ WP(C) 7622/2002
SURENDER SINGH .... Petitioner
Through: Mr. L.R. Khatana, Adv.
versus
THE GOVT. OF DELHI & ORS. ..... Respondents
Through: Ms. Rashmi Gupta and
Ms. Asiya, Advs.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
JUDGMENT
A.K. CHAWLA, J.
1. By the writ petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner seeks quashing of two orders
dated 16.08.2001 and 19.11.2001 passed by Central
Administrative Tribunal in short 'CAT', whereby, his challenge to
the order dated 30.12.1994 of removal, was dismissed; the
application seeking review of that order was also dismissed.
2. The relevant facts are that in 1981 the petitioner was
appointed as a 'Watcher' in the office of the Warden of Fisheries,
Delhi Administration in the pay scale of `196-232/- and
subsequently, made permanent. Thereafter, he was promoted
from Group 'D' post to Grade IV (DASS) in the scale of `950-
1500/- on regular basis on 18.05.1993; and joined the office of
the respondents as LDC on 12.07.1993. The petitioner claimed
that on 29.07.1993, he suddenly fell ill and requested for leave
w.e.f. 30.07.1993 to 29.08.1993. On 02.09.1993, his wife is said
to have sent intimation of his bad mental condition and requested
grant of leave furnishing a medical certificate through UPC. On
08.10.1993, the petitioner's wife is then said to have sent another
intimation about his mental condition enclosing a medical
certificate. Similar intimation is said to have been sent by the
petitioner's wife on 10.02.1994, referring to medical certificates
sent on 02.09.1993 and 08.10.1993. The petitioner alleges that
while he was yet to recover from his mental illness, on
23.02.1994 he became victim of dacoity and sustained head
injuries and was admitted to GTB hospital at about 1.30 a.m. on
24.02.1994. Thereafter, he was admitted to a Nursing Home in
Shahdara as his condition deteriorated. It is stated that the said
incident was covered by an FIR registered at Police Station, Loni,
Ghaziabad. Thereafter, he claims to have suffered from mental
depression.
3. In the absence of grant of leave, the petitioner's absence
from duty was treated as unauthorized and the Govt. of NCT
initiated disciplinary proceedings and issued charge-sheet under
Rule 14 of CCS (CCA) Rules, 1965 vide O.M. dated 18.07.1993,
for the absence w.e.f. 30.07.1993. The enquiry concluded ex-
parte. By order dated 30.12.1994, the disciplinary authority,
imposed a penalty of removal from service upon the petitioner.
4. In the writ petition, it is stated that after recovering from
his illness and unfortunate circumstances, the petitioner went to
join his duties on 26.12.1997 and only then, he became aware of
his removal from service, and was provided with a copy of the
order at his request. He preferred an appeal thereafter only. The
appeal preferred by him was rejected by the appellate authority
on 10.08.1999. In June, 2000, the petitioner assailed the order of
the appellate authority by an application (OA) before CAT. This
OA was dismissed on 16.08.2001. The review of that order was
declined on 19.11.2001. Said orders are now the subject matter of
the instant writ petition filed sometime in November, 2002.
5. Mr. Khatana, learned counsel for the petitioner urges that
the penalty order suffers from serious legal infirmities and is not
sustainable in law inasmuch as the petitioner was never served
with any memorandum of initiation of any departmental inquiry
against him. In his submissions, the petitioner was unaware of
either the initiation or the conclusion of the departmental inquiry,
which culminated with imposition of penalty of removal. It was
therefore strenuously contended that in the absence of any notice
of departmental inquiry, the petitioner was deprived of
opportunity to explain the reasons for his absence and that, this
caused serious prejudice to him and resulted in violation of the
principles of natural justice. According to him, neither the inquiry
nor any conclusions founded in the report were thus sustainable
in law. It was also urged that the petitioner suffered from mental
ailment and was a victim of circumstances, therefore his failure
to attend duties was not wilful and consequently, he did not
deserve the treatment met out to him. The petitioner's counsel
also urged that the petitioner had served the respondent for about
13 years with dedication and due diligence and the penalty
imposed was disproportionate to the misconduct attributed to
him.
6. Ms. Chopra, learned counsel for the respondents submitted
that repeated memos/notices were sent to the petitioner for his
unauthorized absence and it is not that he was unaware of
initiation as well as the conclusion of the departmental enquiry
proceedings. According to her, the petitioner's absence from duty
was willful and the FIR lodged for an alleged incident of dacoity
and his sustaining head injury was cancelled as no incident of
that kind took place. It was also urged that at no stage of any
proceedings, the petitioner ever produced any cogent medical
record of his illness or injury, which leads to irresistible
conclusion that the pleas of any illness or injury were an
afterthought and malafide. It was also contended that even post
imposition of the penalty, the conduct of the petitioner in
approaching the appellate authority and then CAT after
considerable delays and without any material to show that his
absence from duties was not willful, only demonstrated that his
pleas and the defence were unfounded and meritless.
7. It is not in dispute that the petitioner on promotion from
Group D post joined as LDC in PAO-IV, Tis Hazari on
12.07.1993. His absence commenced from 30.07.1993.
Petitioner asserts that before proceeding on leave, he had made
an application seeking leave from 30.07.1993 to 29.08.1993 on
account of sudden illness. It is so averred in the instant petition
as follows:
"3.3 That on 29.7.1993, the petitioner suddenly fell
ill and intimated his office about the illness and
requested for leave w.e.f. 30.7.1993 to 29.8.1993."
8. In terms of the above averments, the petitioner applied on
29.07.1993 due to alleged illness seeking leave w.e.f. 30.07.1993
to 29.08.1993. What was the nature of the illness and as to
whether any doctor advised to so apply (when he made such
application), the petitioner is totally silent. For the penalty of
removal from service imposed upon him on 30.12.1994, he
preferred an appeal to the appellate authority only on 26.12.1997
i.e. almost three years later and it appears, it was on an entirely
different premise. He has annexed a copy of the order dated
11.08.1999 passed by the appellate authority and relevant to the
context, the observations and the conclusions drawn by the
appellate authority are, as follows :
"...................................................................................
....................................................................................
AND WHEREAS Shri Surinder Singh, Ex-LDC has
preferred an Appeal on 26.12.97 against the final
orders of Disciplinary Authority issued on 30.12.94
after a gap of three years i.e. after period of
limitation. The appeal is mainly on following
grounds:
i) That he met with an incident on
25.2.94 and FIR was lodged.
ii) That his personal circumstances in
1993-94 were such that he was facing
mental agony due to some trouble which
arose while going back to his village. In
support of this he has enclosed a press
clipping of 'Dainik Punjab Kesri' dated
26.2.94 and a copy of FIR lodged in
Police Station, Loni Distt., Ghaziabad,
(UP).
I being Appellate Authority have carefully gone
through the case records and points raised in
appeal. The press cutting in 'Dainik Punjab Kesri'
dated 26.2.94 enclosed in support of appeal read
that the incident took place on 25.2.94 while Shri
Surinder Singh was returning to his village from
Delhi. But as per records, Shri Surinder Singh is
absenting himself unauthorisedly since 30.7.93 and
not reported for duty inspite of letter dated 30.8.93,
29.9.93, 7.10.93, 19.11.93, 9.2.94. These all letters
were sent prior to the date of this so called incident.
Thus the enclosed press cutting does not give any
justification for his absence from 30.7.93 to the so
called date (i.e. after six months 25 days from the
date of his unauthorised absence). Thus he failed to
give any justification for his long absence of six
months 25 days; prior to the date of so called
incident. So far outcome of this so called incident is
concerned the Sr. Superintendent of Police (S.S.P.),
Ghaziabad, vide his letter No. R/SSP-11/98, dated
13.10.98 has informed that the FIR No. 108/94 was
lodged on 24.2.94 as per information given by the
father of Shri Surinder Singh was found false/non
happening of event and FIR cancelled on 25.2.94.
The other documents like Medical Certificate from
Verma Clinic and Karuna Clinic enclosed in support
of his case bears the date of happening of Head
injury on 24.2.94 while the paper cutting enclosed in
support, shows the date of incident as 25.2.94 at
5.30 p.m.
Now, therefore, in the light of above, Shri Surinder
Singh has not been able to give any cogent reason
for his unauthorised absence and the submission put
forth have effectively been negated by the Police
Report of SSP, Ghaziabad, UP. Further no
convincing ground has been given for not filing the
appeal in time. Even on merit, there is no substance
in the appeal. The appeal is therefore rejected."
9. It is thus apparent that inspite of the fact that the appeal
was time barred, the appellate authority afforded opportunity of
hearing and dealt with the petitioner's pleas to delve into the facts
relating to his absence. An opportunity to explain his conduct
was therefore given; the petitioner did not avail it. Observations
made by the appellate authority are self explanatory and one need
not advert further on that, more so, for the reason that no
explanation, which could even prima facie have the effect of
disturbing the findings of the appellate authority was given by the
petitioner either before CAT or before this court.
10. This court has also perused the record of the
respondent/NCT and observe that repeatedly memos were sent
and notices were issued to the petitioner with respect to his
absence from duties at his correct residential address. It is
pertinent to note that in terms of the records of the NCT, the
memorandum dated 18.07.1993 intimating about the enquiry
under Rule 14 of the CCS (CCA) Rules, 1965 and the
memorandum dated 02.12.1994 on the imposition of penalty and
to afford him an opportunity to make representation there-
against, were both sent to the petitioner through Regd. post at his
correct residential address; these were received back with the
report that the addressee was not available despite repeated visits.
11. Given these facts and circumstances, we do not see any
reason why the presumption of due service of the said memos
and notices be not drawn. More so, for the reason that the
petitioner on his part did avail an opportunity of hearing before
the appellate authority and did not plead anything to the contrary.
The contention raised by Mr. Khatana to the contrary is therefore
devoid of any merit. Besides that, the plea of absence on account
of any illness, this court observes, does not even prima facie
emerge from the record. According to the petitioner, the
petitioner's wife only sent some communication to the
respondents intimating his sickness of the petitioner enclosing
some certificates through UPC. Was the petitioner by himself
hospitalized and/or terminally sick to such extent that he could
not apply with medical documents? Nothing to that effect was
either pointed out during the course of hearing nor we find such
material from the record.
12. In view of the foregoing, this court finds no reason to
exercise of powers of judicial review under Article 226. We
however hasten to observe that the petitioner had worked for
about 12/13 years of service and for his misconduct of
unauthorized absence, he is penalized with removal from service.
During the said period of 12/13 years, the petitioner does not
appear to have committed misconduct. He apparently has a
family - a wife and small children to support. The Court cannot
be oblivious of the fact that the petitioner joined as a Group 'D'
employee as a Watcher of Fisheries department and perhaps, is
not educated enough. The fact however, remains that he served
the respondent NCT for 12/13 years; during such period having
been made permanent he was promoted as well. The fact that he
has to support himself as also his wife and the small children, is
undeniable. Therefore, keeping in view the totality of the facts
and circumstances of the case, we are of the view that even while
declining the relief we observe that if he represents to the
Competent authority within 45 days from today and makes out a
case for deserving special consideration, the competent authority
would consider the request and sanction a compassionate
allowance as envisaged by Rule 41 of the CCS (Pension) Rules
after exercising discretion. The order shall be made within 30
days of receipt of such application or representation.
13. The writ petition is disposed of in the above terms.
A. K. CHAWLA, J
S. RAVINDRA BHAT, J
OCTOBER 12, 2018/rc
