Central Administrative Tribunal - Delhi
Shri Aditya Nashier vs North Delhi Municipal Corporation on 28 August, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.-20/2015 Order Reserved on 08.05.2015 Order Pronounced on: 28.08.2015 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. Raj Vir Sharma, Member (J) Shri Aditya Nashier S/o Shri Jage Ram Nashier R/o 44, Suvidha Kunj, Pitampura, Delhi-110034. -Applicant (By Advocate: Shri Nilansh Gaur) Versus 1. North Delhi Municipal Corporation Through its Commissioner Civil Center, JLN Marg Minto Road, New Delhi-110002. 2. Govt. of NCT of Delhi Through its Chief Secretary Representing Lt. Governor of Delhi Delhi Sachivalaya, I.P. Estate, New Delhi. -Respondents (By Advocate: Shri R.K. Jain) O R D E R Per Sudhir Kumar, Member (A):
The applicant of this OA is before this Tribunal aggrieved by the order of his Appellate Authority, setting aside the order of the Disciplinary Authority, which had dropped the Articles of Charges, without affording a reasonable opportunity to him, and has prayed for the treatment of the period of six years of his service from 03.10.2006 to 21.10.2012 to be counted as qualifying service for his service benefits.
2. The facts of this case lie in a very narrow compass. The applicant tendered his resignation from the post of Junior Engineer (Civil), to which he had been appointed on 23.08.1988, through his letter of resignation dated 03.10.2006, on personal grounds, with a request to accept it with immediate effect. In order to enable the respondents to accept his resignation with immediate effect, without their having even asked him to do so, he also voluntarily deposited one months salary in lieu of one months notice, and then even got a No Dues Certificate issued to him. Since he had thus complied with all the conditions and prerequisites for his resignation to be accepted with immediate effect, it was assumed by the applicant by implication that his resignation had been accepted, though the respondents did not communicate any order or notice to him in this regard, pursuant to the resignation, in spite of reminders from the applicant dated 12.01.2007 and 29.03.2007, seeking release of his GPF and other dues also, consequent upon his resignation.
3. Since his retiral dues were not paid for quite some time thereafter, 5 years later, on 07.07.2011, the applicant made a request through Annexure A-3 (Colly) stating that now he wishes to withdraw his resignation, and wishes to continue in service as Junior Engineer (Civil), and wanted to rejoin his duties with immediate effect. A similar request was addressed by him to three of his superiors, and copies of each were marked to the Superintending Engineer (Planning) of the erstwhile unified MCD, Civic Centre, Tagore Road.
4. Since no action was taken by the respondents even thereafter, he sent another letter dated 02.12.2011, requesting for arrangements to be made for his marking his attendance, and for release of his salary on urgent basis, and through his letter dated 09.01.2012, delivered on 10.01.2012, he even gave a voluntary joining report, along with a request for withdrawal of his resignation submitted more than 5 years back (Page 25 of the OA). His joining report was not accepted by the Executive Engineer-Project 1, and, therefore, the applicant made a representation dated 18.01.2012 to the Commissioner of erstwhile unified MCD, more in the nature of a complaint regarding non-acceptance of his joining report.
5. In the meanwhile, the Planning Department of MCD, through their letter dated 20.01.2012 (Annexure A-4), asked him to submit his proper request for withdrawal of his earlier resignation, so that his joining report application dated 07.07.2011 could be processed further. On 27.01.2012 the applicant replied to that, praying that he wants to withdraw his resignation, and that he had again submitted his joining report, along with a request for permitting withdrawal of his resignation, and requested for being allowed to join his duties w.e.f. 07.07.2011. When there was some delay in replying, he again complained to the Commissioner through his letter dated 09.03.2012 regarding non-acceptance of his joining report, copies of which were marked to Additional Commissioner (Engg.) and ADC (Engg.) also.
6. Thereafter, the MCD came to be trifurcated some time in the year 2012, and through his orders dated 27.09.2012, as is apparent from Annexure A-7 (colly), the Commissioner, North Delhi Municipal Corporation, accorded the administrative approval for withdrawal of resignation of the applicant, submitted by him nearly six years back on 03.10.2006, which was communicated to him with the following conditions:-
No. :HC-II/Engg./HQ/NDMC/2012/417 Dated : 22.10.12 OFFICE ORDER The Commissioner, North DMC vide orders dated 27.09.2012 has accorded the administrative approval for withdrawal of resignation of Sh. Aditya Nashier, JE(Civil) submitted by him on 30.10.2006 (sic 3.10.2006) on following conditions with immediate effect:-
1. Disciplinary action for major penalty to be initiated against Sh. Aditya Nashier, JE (Civil) for remaining wilfully absent without acceptance of resignation which was tendered while police case No. 1499/SIO(P)/Vig./2001/CBI was pending against him.
2. He has to file an affidavit to the effect that he did not undertake any profitable work or did not serve elsewhere in India or abroad and did not remain under police custody or in jail during the period of absence i.e., w.e.f. 30.10.2006 (sic 3.10.2006) till re-joining.
3. The matter regarding period of long absence w.e..f 30.10.2006 (sic 3.10.2006) till re-rejoining will be decided separately. (Emphasis supplied)
7. Later on, through issuance of a Corrigendum dated 27.12.2012, produced by the applicant at page 32 of the paper book, the date was corrected to be read as 03.10.2006 instead of 30.10.2006. The applicant thereafter submitted a representation to the Additional Commissioner (Engg.) of North Delhi Municipal Corporation through Annexure A-8 dated 22.03.2013, praying for condonation of his absence, and further praying for grant of Extraordinary Leave for the period concerned, in which he had made submissions as follows:-
1. The action of initiating major penalty may kindly be withdrawn as I was not wilful absent from 13.10.2006 to 07.07.2011 or 22.10.2012 because I was not intimated by the Department for non-acceptance or rejection or my resignation. As stated above, after getting the due permission to deposit one month salary and submission of all necessary No Dues Certificates I left my office and waited for a communication in this regards
2. The only fault was on the part of the department because it does not take any action on my resignation application till 07.07.2011. I was neither called to re-join my duties after 13.10.2006 nor intimated me about non-acceptance of resignation. The Department took about 5 years in the process of acceptance of resignation and there after 1 year 4 months in the process of allowing me to re-join. This shows that who was on fault.
In view of the above facts, I should not be considered faulty for any willful or unauthorized absent. Even though, I am appealing for condonation of this absent, if any. Further, my date of re-joining should be modified from 22.10.2012 to 07.07.2011, because it is only the department who forced me to wait for re-joining my duties till 22.10.2012. Due to this no salary was given to me.
It is also requested that kindly withdraw the condition imposed on me to face major departmental proceedings and the vigilance department may kindly be directed not to initiate any such action against me because no fault has been committed by me. The above mentioned period may kindly be regularized by considering the facts of the case or by granting extraordinary leaves. (Emphasis supplied).
8. However, the respondents did not accept his plea, and a Charge Sheet dated 31.05.2013, along with Statement of Allegations on the basis of charges, List of Witnesses, and List of Documents etc. were served upon him thereafter (Annexure A-9). The applicant submitted his very detailed reply to the same through Annexure A-10 dated 28.06.2013, received in the Commissioners office on 03.07.2013. Thereafter under Regulation-8 of the DMC Services (Control & Appeal) Regulations, 1959, after considering the applicants reply in respect of the Charge Sheet, the Commissioner North Delhi Municipal Corporation decided to drop the Departmental Enquiry (DE, in short) proceedings, after administering him a recordable warning, and further ordered to treat the period of his absence w.e.f. 03.10.2006 to 21.10.2012 as dies non for which it was not ordered to be a break in service, but it was ordered that he shall not be entitled for any salary or other allowances, and service benefits for the said period. This was communicated to him through an Office Order issued by the Law Officer (Vig.) dated 24.09.2013 (Annexure A-11).
9. The applicant appealed against this communication to the Honble Lt. Governor of Delhi through Annexure A-12 dated 30.10.2013, repeating his contentions, as discussed above, in quite detail, and he had prayed before the Honble Lt. Governor as follows:-
The present appeal requires consideration for the subsequent part of the concluding paragraph under which disciplinary authority has considered my absence as unauthorized absence and has been ordered that same may be treated as dies non. Further, it has also been declared by the disciplinary authority that I will not be entitled for salary and other service benefits for the said period. The disciplinary authority failed to consider the facts submitted before him and hold me responsible for the fault which was committed by the department itself. The disciplinary authority was failed to appreciate the prompt actions taken by me through out Prayer In the facts and circumstances as stated above it is absolutely clear that subsequent part of the office order dated 24.09.2013 is without support of law and declaring period between 03.10.2006 to 21.10.2012 as unauthorized absence is unjustified and cannot sustain under the law. Accordingly, order of the disciplinary authority to treat period from 03.10.2006 to 21.10.2012 as dies-non and further declaring me disentitled for salary and other service benefit for the said period is also illegal.
Accordingly, your goodself is requested to set-a-side the order of the disciplinary authority dated 24.09.2013 as illegal to the effect which declare period from 03.10.2006 to 21.10.2012 as unauthorized absence and disentitled me for salary and other service benefits for the said period and it should be considered toward service for all purpose. (Emphasis supplied)
10. The applicant is aggrieved by the rejection of his appeal by the Appellate Authority, Honble Lt. Governor of Delhi , as had been communicated to him through the impugned Annexure A-1 dated 10.12.2014. He has tried to point out that there was a difference of opinion between the different officers at various points of time, which has been tried to be proved by the applicant by filing the copies of the Note Sheet pages from 56 to 78 of the file in which his case was considered, which file notings he has obtained under the RTI Act, through the forwarding letter dated 04.12.2012 of the Public Information Officer of the Engineering Department (HQ). In the result, the applicant has taken the ground in filing the present OA that the impugned order passed by the Appellate Authority is without jurisdiction, and against Rule-15 of the said Rules, 1959, and has prayed for the impugned order at Annexure A-1 dated 10.12.2014 to be quashed, and for a direction upon the respondents to treat the intervening period from 03.10.2006 to 21.10.2012, as his qualifying service for all service benefits, apart from any other relief, which this Tribunal may deem fit and appropriate in the circumstances of the case.
11. Respondents filed their counter reply on 05.02.2015. They had raised a preliminary objection that while the applicant is praying for direction upon the respondents to treat the intervening period from 03.10.2006 to 21.10.2012 as qualifying service for service benefits, he has not laid a challenge to the source order dated 24.09.2013, whereby the same has been decided as dies non by the Disciplinary Authority. A further preliminary objection plea was taken that the OA filed on 23.12.2014 had been filed much after one year of the issuance of the Office Order dated 24.09.2013, and was, therefore, not maintainable. While we shall discuss the merits of the respondents case regarding their first preliminary objection, we find that the second preliminary objection regarding delay and laches is not maintainable, as the applicant has challenged the Office Order dated 10.12.2014 Annexure A-1, and had filed the OA on 23.12.2014, within 15 days of the said final order passed by the Appellate Authority, and, therefore, we hold that there is no delay on the part of the applicant in filing this OA.
12. Thereafter, the respondents had submitted that the records in the applicants file revealed that he was facing a police case under the Prevention of Corruption Act, 1988, registered by the CBI against him, at the time he hurriedly submitted his resignation dated 03.10.2006. As such, because of the pendency of the criminal case registered by the CBI against him, his resignation from the post of Junior Engineer (Civil) from the erstwhile MCD could not have been accepted, in terms of the standing instructions of Govt. of India, Department of Personnel & Training, on that subject. The respondents also pointed out that the applicant had, on his own volition, deposited one months salary, amounting to Rs.17,625/-, on 13.10.2006, without any permission/consent of the concerned departmental authorities. They have submitted that he had also voluntarily stopped attending the office after submission of the resignation letter, without waiting for acceptance of his resignation by the Competent Authority. They had, therefore, justified the authorities having treated the applicant to have been unauthorizedly absent from his duties after submitting his resignation letter dated 03.10.2006. They had denied that in between the applicant had made any representation after 03.10.2006, before he indicated his intention to continue his services as Junior Engineer (Civil), and to rejoin duties, by a letter dated 07.07.2011 addressed to Executive Engineer (Proj.)-1, Rohini Zone, who is not the Competent Authority in this regard.
13. It was submitted that in spite of this, the respondents had examined and processed the request of the applicant favourably, and the Commissioner of North Delhi Municipal Corporation even issued orders allowing him to withdraw his resignation, but one of the conditions was that a regular DE for major penalty would be initiated against him, for his having remained willfully and unauthorisedly absent from duty for nearly six years. Thereafter, when the applicant submitted his joining report to the Dy. Commissioner (Engg.), dated 22.10.2012, his joining report was accepted.
14. It was submitted that from the above sequence of events it is evident that the applicant has failed to maintain absolute integrity, and devotion to duty, and had committed gross misconduct, which is unbecoming of a Government employee, as he had failed to attend to his duties, after submission of the resignation, without waiting for acceptance of the same by the Competent Authority, and in this manner he had remained unauthorizedly absent from his duty from 03.10.2006 to 21.10.2012. It was submitted that when the Charge Sheet was issued to the applicant, he had denied the charges, and prayed for them to be dropped, and had sought an opportunity of personal hearing. It was submitted that the Disciplinary Authority had further shown consideration towards him, and ordered to administer to him only a recordable warning, and ordered to drop the regular DE proceedings, and to treat the period of his unauthorized absence from duty as dies non, with the further condition that he would not be entitled for any salary and allowances, or other service benefits, for the said period of his unauthorized absence, as already reproduced by us above.
15. It was, thereafter, explained by the respondents that the appeal of the applicant was viewed differently by the Appellate Authority, Honble Lt. Governor, Delhi, in terms of DOP&T OM dated 11.02.1988, in which it is specifically mentioned that a resignation becomes effective only when it is accepted by the Appointing Authority, and the Government servant is relieved from his duties, and also relying upon the DOP&T OM dated 22.06.2010, which lays down the consequences and procedure to be followed in respect of an officer who had remained absent from duty, without any authority for deserting the post, and had held that the applicant not reporting to duty, without acceptance of his resignation, and his being properly relieved, amounted to desertion, and, therefore, it was ordered that the period till his rejoining was liable to be treated as unauthorized absence with all consequential actions, and the matter had been remitted back to the Disciplinary Authority for resuming the disciplinary proceedings from the stage of appointing Enquiry Authority, and taking it to its logical conclusion, as per the provision of Delhi Municipal Corporation Services (Control & Appeal) Regulations 1959.
16. It was pointed out that Honble Lt. Governor has further ordered for disciplinary proceedings being taken against all those employees also, who were responsible for acceptance of one months salary from the applicant, without the Competent Authority ever having accepted his resignation. It was submitted that in compliance of the order passed by the Honble Lt. Governor of Delhi, the Disciplinary Authority, Commissioner NDMC, has since appointed an Enquiry Officer and a Presenting Officer, to conduct regular DE, vide office order dated 02.01.2015. It was further submitted that the matter has been forwarded to the investigation unit of the Vigilance Department for taking disciplinary proceedings against all those employees also, who were responsible for the acceptance of one months salary from the applicant, without the Competent Authority having accepted the applicants resignation, and for not taking timely action on the applicants resignation etc.
17. The respondents had, thereafter, submitted their para-wise replies on the same lines, and had denied that the Appellate Authority remitting the case to the Disciplinary Authority to hold the DE amounts to enhancing of the penalty in any manner whatsoever. It was further denied that the penalties enumerated in Regulation 6 of the DMC Services (Control & Appeal) Regulations, 1959, are not exhaustive in nature, and if the Appellate Authority could act only upon the punishment mentioned in Regulation-6, then the applicant should not have preferred any appeal at all, because none of the penalties mentioned under Regulation-6 have been imposed upon him by the Disciplinary Authority, and, therefore, the plea taken by the applicant was not tenable. It was further submitted that the applicant himself has accepted that he did not receive any communication in regard to acceptance of his resignation, and hence the misconduct of his being unauthorizedly absent from his duty cannot be attributed to the department, but has to be attributed to the applicant himself. It was, therefore, prayed that the OA is devoid of any merits, and may be dismissed with costs.
18. Applicant filed his rejoinder dated 23.02.2015, more or less reiterating his contentions as already made in the OA. The applicant had denied the preliminary objections raised by the respondents as misconceived. He had also submitted that the treatment of intervening period by the respondents has not been indicated, while the applicants entitlement for the period from 03.10.2006 to 21.10.2012 to be reckoned for qualifying service for pension, is a continuing and recurring cause of action. It was further submitted that as per DOP&T letter dated 30.09.1982, it was mandated upon the Competent Authority to suo moto issue an order to condone the break in service, for the purpose of pension only. It was further submitted that applicant was not aggrieved by the order passed by the Disciplinary Authority on 24.09.2013, in so far as only a recordable warning had been issued, and that he had preferred an appeal before the Appellate Authority not against any penalty, but in respect of the treatment of the intervening period for service benefits. His further submission regarding the OA being within limitation has already been accepted by us above.
19. It was further submitted by him that neither recordable warning is a penalty, nor treatment of the period of unauthorized absence as dies non is a prescribed penalty under the relevant Regulations, and even if an appeal is preferred against the orders of the Competent Authority under the Regulations, the Appellate Authority could not have acted beyond its jurisdiction, to pass the impugned order, setting aside an order passed by the Disciplinary Authority, and then directing for the DE against him to be ordered afresh.
20. It was further submitted that the appeal of the applicant to the Appellate Authority should not be construed as an appeal, but only as a representation for treating the dies non period as a qualifying service for pensionary benefits, as mandated under FR-17. Further, it was submitted that the Competent Authority had failed to exercise its jurisdiction under Regulation 16 within the time frame prescribed. It was further submitted that the applicant was orally asked to remit one months salary, in order to complete the formalities of acceptance of his resignation, and an impression was given to him to this effect at that point of time. However, when the further process had not been undertaken, and the request of the applicant had not been taken cognizance of, and though he was reinstated back, in acceptance of his request for revocation of his resignation, for the concerned officers not to have acted timely, no fault can be attributed to the applicant. It was further submitted that when the Competent Authority had taken a final decision to take the applicant back to duty, and the enquiry had been dropped after the expiry of the stipulated period, the Appellate Authority could not have passed an order to resurrect the enquiry.
21. In response to the reply of the respondents to Para 4.18 of the O.A., it was submitted that mere filing of an appeal does not give any ground to the Appellate Authority to exercise its jurisdiction. It was further submitted that even the respondents have admitted that the appeal was only regarding dies non period, and in such an event, his appeal could have been treated as a representation, rather than an appeal against the penalty. It was further submitted that the applicant had not challenged the order passed by the Disciplinary Authority regarding dropping of the DE, and had requested only in respect of treatment of interregnum period. However, since his request for treating the interregnum period as qualifying period for pension, was not accepted, he had made a request in this regard to the Appellate Authority, which could not have been treated as an appeal against a penalty under Regulation 6 by the Appellate Authority, and to that extent, the order of the Appellate Authority was wrong. In the result, the applicant had prayed for the OA to be allowed.
22. Heard. Both the learned counsel argued more or less on the lines of their written pleadings, which we have discussed in detail above, and the learned counsel for the applicant especially took us through the various correspondence between him and the authorities, both at the time the applicant wanted to leave his service, as well as when he wanted to rejoin. He also pointed out the Statement of Allegations on the basis of which charges had earlier been sought to be proved against the applicant, which enquiry was later dropped by orders of the Disciplinary Authority, the contents of his appeal against the order dated 24.09.2013 issued from the office of the Disciplinary Authority, and his appeal dated 28.10.2013 addressed to the Appellate Authority.
23. We have given our anxious consideration to all aspects of the case. In the prayer portion of his OA, the applicant has sought only for quashment of only one order impugned by him, dated 10.12.2014 (Annexure A-1), which was passed by the Appellate Authority, over-ruling the order of the Disciplinary Authority. He has not challenged in this OA, the Disciplinary Authoritys original order, against which he had filed his appeal. His grievance against the Disciplinary Authoritys order in his appeal, as preferred before the Honble Lt. Governor, i.e., the Appellate Authority, has already been partly reproduced by us above.
24. The applicant can derive no benefit from the Note Sheet files of the respondent-MCD, which he has filed at pages 55 to 78 of this OA, as it is trite law that notings on the files do not constitute a decision or an order, and an order is only that what is finally communicated to the delinquent Government official, after the culmination of the result of the recording of notings, by various people, at various levels of authority, who had expressed their own opinions, before the final decision was taken in the matter. Therefore, though the learned counsel for the applicant had taken us through some of the pages of the Note Sheet file, the applicant cannot be allowed to derive any benefit out of those notings. It is only the final order which emerges after all those notings, which can either constitute the basis of a lis, or tilt the balance of the lis one way or the other.
25. The issue, therefore, before us is very limited. Here, the source order of the Disciplinary Authority, against which he had filed an appeal before the Appellate Authority, and on which the Appellate Authority had taken a decision, which has been communicated to him through the impugned order at Annexure A-1, has not been challenged by the applicant. He cannot also be permitted to state that his appeal filed before the Appellate Authority, and the specific prayer made therein to set aside the order of the Disciplinary Authority, was not really a Statutory Appeal, but only a Memorandum, as is apparent from the very wordings of the Appeal Petition itself, portions of which have been alluded to by us above.
26. Further, no prejudice has so far been caused to the applicant, as no punishment has ever been imposed upon him, and any action can only follow when the DE would be conducted against him, and completed, as now ordered by the Appellate Authority. He would certainly have full opportunity to defend his case during the DE proceedings.
27. Further it is trite law that absence without acceptance of resignation, that too for such a long period, has been held by the Courts and Tribunals repeatedly to be misconduct. In this connection, we may cite in brief the ratio arrived at by the Honble Apex Court in the case State of U.P. & Ors. vs. Ashok Kumar Singh & Anr: 1996 (1) SSC 302, and in many other cases also, and in the following cases also, by different Courts; from P. Ramanatha Aiyars The Law Lexicon, 3rd Edition, 2012, as follows:-
i) The term misconduct may involve moral turpitude, it must be improper or wrong behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character, as held by the Honble Apex Court in State of Punjab vs. Ram Singh, AIR 1992 SC 2188 : (1992) 4 SCC 54 [Constitution of India, Arts. 309, 311 and Punjab Police Manual, 1936, R.16, 2 (1)].
ii) The word misconduct covers any conduct, which anyway, renders a man unfit for his office, or is likely to embarrass the administration, as held by Honble Calcutta High Court in the case of Golam Mohiuddin vs. State of West Bengal, AIR 1964 Cal. 503 515 [West Bengal Govt. Servants Conduct Rules (1959), R.4]
iii) The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or Statute which is being, construed, misconduct literally means wrong conduct or improper conduct [59 Mad. 789: 163 IC 493: 9RM 24: 1936 MWN 594: 43 LW 938: 1936 Mad 508: 70 MLJ 608]
iv) Misconduct literally means wrong or improper conduct, i.e., conduct in violation of a definite rule of action. It ordinarily means failure to do what is required of a person to be done. An omission to do what is required of a person to do may therefore constitute misconduct even though the person has not acted wilfully or maliciously, as held in the case of Shaikh Mohammad vs. G.G. in Council, AIR 1954 Nag. 337. [Indian Railways Act (9 of 1890), S.72]
v) Misconduct is something more than mere negligence. It is the intentional doing of something which the doer knows to be wrong or which he does recklessly, not caring what the result may be, as held in the case of Rasabati Bewa vs. Union of India, AIR 1961 Ori 113, 118. [Railways Act (9 of 1890), S.74-6(3)].
vi) Misconduct is something more than mere negligence, and it is the intentional doing of something which the doer knows to be wrong or which he does recklessly, not caring what the result may be, as held in the case of Dominion of India vs. Ado Shaw Aklu Shaw, AIR 1957 Pat. 219, 223 [Railways Act (9 of 1890), S.72].
28. Further, it has not been disputed by the applicant that he had submitted his resignation in a hurry because investigations under Prevention of Corruption Act had been started against him, and he had even deposited one months salary in lieu of notice, without his having been permitted to do so, only because the CBI had registered a criminal case against him, and had initiated enquiry against his actions, which were at that point of time considered to be criminal in nature. The applicant himself remained absent from the office of the respondents, and only when he learnt of his having been exonerated in the CBI proceedings, he ventured to once again approach the respondents, and started praying for his being taken back to duty. In their magnanimity, the respondents did allow him to resume his duty, because they had also not passed any order having accepted the resignation of the applicant seeking pre-mature voluntary retirement, because of the pendency of the criminal proceedings against him.
29. Respondents are fully justified in submitting that they could not have accepted his resignation when criminal case investigation was going on against him, and the Appellate Authority had rightly held that there was mischief on the part of those officials, who had accepted the payment of one months salary from the applicant in lieu of notice, when no such permission to deposit one months salary had been granted by the applicants Appointing Authority, or the Disciplinary or Appellate Authority, at that point of time, without which permission such amount could not have been accepted for being deposited. It has been submitted that the occasion to deposit the amount equivalent to one months salary would have arisen only if the Appointing/Disciplinary Authority had decided to accept his resignation, and then, in lieu of notice, demanded payment of one months salary.
30. A Government servant is bound by the conduct Rules and the disciplinary Rules, which bind his conduct. He just cannot submit a resignation, and then walk away from his post, and absent himself without waiting for the resignation for premature voluntary retirement being accepted. Till such order of acceptance of the request of premature voluntary retirement had been passed, the Govt. servant continues to be bound by the Rules governing his conduct, and he cannot abstain from duty without authority, and without applying for leave, and without any permission whatsoever. Having already discussed the case law on the point of misconduct as above, we need not recount here the case law in regard to the types of punishments, which can be imposed upon a delinquent Government official, who so absents himself from duty voluntarily, because that would be amount to this Tribunal prejudging the result of the DE, which has yet to be held against the applicant, as per the orders of the Appellate Authority communicated to him through the impugned order. Therefore, we refrain ourselves from making any further observations on that point.
31. One more aspect is that the applicant has been less than truthful before this Tribunal, inasmuch as he has not disclosed as to what avocation or profession or employment he was engaged in for the nearly six years period of his absence from service, and has yet laid a claim in the prayer clause in Para 8.2 of his OA to direct the intervening period from 03.10.2006 to 21.10.2012 to be counted as qualifying service for his service benefits. This prayer could only have been raised by the applicant after making a specific averment that he had not taken up any alternative employment, and he was not gainfully employed or engaged anywhere over a period of more than six years, and had all along only been waiting for the acceptance of his resignation. We are not able to discern any such averment in his O.A.
32. Lastly, as regards the first preliminary objection taken by the respondents, the objection raised by the respondents is sustained, since the applicant had challenged the order dated 24.09.2013 before the Appellate Authority, deciding the intervening period of 03.10.2006 to 21.10.2012 as dies non, but he has not challenged that Disciplinary Authoritys order, against which he had appealed before the Appellate Authority, in the present OA. Therefore, in the absence of a challenge to that source order, the prayer at Para-8.2 of the present OA cannot also be granted to the applicant. We also do not find the case fit to grant any further relief to the applicant in response to his prayer at Para 8.3, as reproduced above.
33. In his arguments and the written submissions submitted by the learned counsel for the applicant, the applicant had relied upon the Honble Delhi High Courts judgment in Municipal Corporation of Delhi vs. Dinesh Kumar Sangal in WP (C) No.2125/2010 dated 26.03.2010. The facts of that case do not appear to be on all fours with the facts of the instant case, and, in any case, the respondents have yet to take a final view, after conducting the DE against the applicant, and, therefore, at this stage, even before the DE has been conducted and completed, we cannot provide the benefit of the above cited judgment to the applicant.
34. In his counter reply, learned counsel for the respondents had relied upon the judgment of Ernakulam Bench of this Tribunal in Smt. K.B. Valsalakumari IAS vs. Union of India & Ors, in OA No.654/2011 dated 27.07.2012. In that judgment, the concept of dies non has been discussed in detail. But since the applicant has not challenged the order of Disciplinary Authority declaring the intervening period of more than six years as dies non, which is the source order, but has only challenged the Appellate Authoritys order, and we have upheld the preliminary objections taken by the respondents as mentioned above, we need not further elaborate on this aspect, and would leave the Disciplinary Enquiry, as ordered by the Appellate Authority, to get concluded.
35. In the result, we are of the firm view that the present OA is devoid of any merits, and is, therefore, dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.