Delhi High Court
Satish Kumar vs The District & Sessions Judge ... on 3 December, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:-03.12.2019
+ W.P.(C) 12066/2019
SATISH KUMAR ..... Petitioner
Through Mr.S.S.Sastry, Adv.
versus
THE DISTRICT & SESSIONS JUDGE (HQS) ..... Respondent
Through Ms.Avnish Ahlawat with Mr.Nitesh
Singh &Ms.PalakRohmetra, Advs.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
C.M.No.49398/2019
Exemption allowed, subject to all just exceptions.
The application stands disposed of.
W.P.(C) 12066/2019
1. The present petition under Article 226 of the Constitution of
India has been filed by an ex-employee in the Office of the District
and Sessions Judge, Delhi assailing the order dated 17.06.2017 passed
by the Disciplinary Authority dismissing him from service, as also the
order dated 01.11.2018 passed by the learned Single Judge,
whereunder his appeal challenging this dismissal came to be rejected.
2. The petitioner, who was appointed to the post of a 'peon' in the
Office of the District and Sessions Judge, Delhi on 02.08.2007,
applied for and was granted earned leave for the period between
01.04.2012 and 20.04.2012. When he failed to rejoin duty after expiry
of this leave period, the petitioner was issued memorandums/show-
cause notices dated 22.05.2012, 03.09.2012 and 22.09.2012, which
were all returned unserved with the report that he was not residing at
the given address. On 13.08.2013, as the petitioner had failed to
resume duties or give any explanation for his continued, unauthorised
absence, he was issued a memorandum of charges under Rule 14 of
the Central Civil Service (Classification, Control and Appeal) Rules,
1965 ('CCS Rules' for short), to which he did not reply.
Consequently, Shri.M.K.Nagpal, learned Additional Districts and
Sessions Judge, Delhi was appointed as the Enquiry Officer.
3. It appears that the Enquiry Officer also made several attempts
to serve the petitioner through ordinary modes, which remained
unsuccessful and, as a result, the petitioner was served by publication
on 07.03.2014. When the petitioner still failed to appear before the
Enquiry Officer, he was proceeded against ex parte on 29.03.2014.
During the enquiry, the respondent/Department examined five
witnesses in support of the charges levelled against the petitioner and
upon consideration of the same, the Enquiry Officer vide its report
dated 07.05.2014, held the charges as proved. While the enquiry was
underway a clarification was sought as to who, in the light of the
amendments to Delhi District Courts Establishment (Appointment and
Conditions of Service) Rules, 2012 (hereinafter referred to as 'Delhi
District Court Rules') which were notified on 02.12.2013, would be
the Disciplinary Authority in these proceedings. On a resolution of
the aforesaid query, the petitioner was on 18.05.2016 issued a
memorandum under Rule 30(2) of the Delhi District Courts Rules
calling upon him to submit his representation, if any, to the enquiry
report. Notwithstanding the fact that this memorandum, along with a
copy of the enquiry report, was sent to all addresses of the petitioner
which were available with the respondent, he remained untraceable,
despite the efforts of the SHO of the concerned Police Station.
Ultimately, the petitioner was served through publication on
08.12.2016.
4. Before further action could be taken on the enquiry report, the
petitioner rejoined service on 21.03.2017 and submitted his reply to
the Disciplinary Authority on 19.05.2017. In his reply, the only
explanation given by the petitioner for his prolonged and
unauthorized absence from service was his state of mental disturbance
brought on by matrimonial issues, which prevented him from joining
duty.After giving the petitioner an opportunity of personal hearing,
the Disciplinary Authority found no merit in his explanationand,vide
its order dated 17.06.2017, imposed a penalty of dismissal from
service on him, which order is impugned in the present petition.
5. Aggrieved by the dismissal order passed by the Disciplinary
Authority, the petitioner preferred an appeal under Rule 35 of the
Delhi District Courts Rules, which came to be dismissed vide order
dated 01.11.2018 passed by learned Single Judge of this Court, which
order is also impugned in the present petition. While dismissing the
appeal, the learned Single Judge rejected the petitioner's contention
that the enquiry stood vitiated because of non-compliance of Rule
14(18) of the CCS Rules, on the ground that despite repeated attempts
made by the Authorities to serve him with notice of the enquiry, both
before its commencement and during its pendency, the petitioner
remained absent throughout the disciplinary proceedings and could
not, therefore, raise the plea that he had not been duly served. While
dismissing the appeal, the learned Single Judge also noticed the fact
that the petitioner had admitted his unauthorised absence from duty
between 21.04.2012 and 20.03.2017, and his explanation for such
absence was found to be unjustifiable.
6. Today before us, learned counsel for the petitioner reiterates the
submissions made before the learned Single Judge and contends that
once the Enquiry Officer failed to serve the petitioner with day to day
orders passed in the enquiry, the report given by him stood vitiated for
non-compliance of Rule 14(18) of the Central Civil Service
(Classification, Control and Appeal) Rules, 1965 and could not be
relied upon.He further submits that the petitioner remained absent
only because he was under great mental stress on account of his
matrimonial problems and, therefore, his case may be considered
compassionately. He, thus, prays that the penalty of dismissal be
suitably modified so that the petitioner is not deprived of his only
source of livelihood.
7. We have given our thoughtful consideration to the submissions
made by learned counsel for the respondent and perused the record,
but are unableto find any reason to differ with the impugned orders.
The petitioner, who was working as a peon in the Office of the
District and Sessions Judge, had admittedly remained on unauthorized
leave for almost a period of five years, during which period he neither
gave any information to his employer regarding his whereabouts, nor
responded to the various calls made to him and the enquiry notices
issued to him. The only explanation given by the petitioner was that
he was under great mental stress owing to marital discord and,
therefore, could not join duty, which explanation in our view does
not,in any manner, justify his prolonged absence from duty. The
petitioner's misconduct was not only proved in a validly held
departmental enquiry but has, in fact, not even been seriously disputed
before us.
8. Once repeated attempts to serve the petitioner with the call-
up notices, memorandum of charges, and the notices issued by the
Enquiry offices failed, the petitioner cannot complaint that he was not
served with daily orders of the enquiry proceedings, or that the
enquiry, in any manner, stood vitiated on this count. The petitioner
has exhibited complete lack of devotion to duty by remaining
unauthorisedly absent for nearly 5 long years. He seems to be under
the mistaken impression that he had no obligation to attend to his
duties; he could come and go whenever he liked; he had no
obligation to seek leave; he had no obligation to inform the
respondents about his whereabouts, and; he could relax and sit back
while it was for the respondent to find him; serve him with notices
etc., and; invite him to participate in and join the enquiry. Obviously,
the petitioner has been completely unmindful of the fact that as an
employee he had the obligations to serve with discipline, devotion and
loyalty, which are all found to be lacking in his conduct. In any
event, since the petitioner had been granted a personal hearing by the
Disciplinary Authority who duly considered his explanation and
found the same to be meritless, before passing the impugned order,
we find that no prejudice was caused to the petitioner.
9. For the aforesaid reasons, the writ petition, being meritless, is
dismissed.
REKHA PALLI, J
VIPIN SANGHI, J
DECEMBER 03, 2019
sr
