Central Administrative Tribunal - Delhi
Waziruddin vs Mr. Ramesh Negi on 23 August, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH C.P. No.217/2012 & T.A. No.1235/2009 Order reserved on 30.03.2012 Order pronounced on 23.08.2012 Honble Mr. G.George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) CP No.217/2012 Waziruddin S/o Sh. Hafiz Nooruddin Junior Engineer D.R. EE (CSE) IV South Shahdra Luxmi Nagar, Delhi R/o C-22, Y-II Dilshad Garden, Delhi. -Petitioner (By Advocate: Shri Padma Kumar S. with Shri Lalta Prasad) Versus 1. Mr. Ramesh Negi Commissioner Delhi Jal Board Varunalaya, Jhandewalan New Delhi. 2. Mr. Rakesh Mehta, Chief Secretary, 5th Floor, Delhi Sachivalaya, I.P. Estate, New Delhi. Contemnor/Respondents TA No.1235/2009 Waziruddin S/o Sh. Hafiz Nooruddin Junior Engineer D.R. EE (CSE) IV South Shahdra Laxmi Nagar, Delhi R/o C-22, Y-II Dilshad Garden, Delhi. -Applicant (By Advocate: Shri Padma Kumar S. with Shri Lalta Prasad) Versus 1. Lt. Governor of Delhi, Through its Chief Secretary, 5, Sham Nath Marg, Delhi-54. 2. Delhi Jal Board, Through its Commissioner, Varunalya Jhandewalan, New Delhi. -Respondents O R D E R
Mr. Sudhir Kumar, Member (A) This Contempt petition has been filed by the petitioner alleging non-implementation of the interim order passed by this Tribunal on 24.11.2011 in TA No.1235/2009 arising out of Writ Petition (C) No.3905/1994. It is seen that the operative portion of the Interim order of the Bench that day was as follows:-
Since the applicant has pointed out that copy of the order of the Appellate Authority is not available with him, the respondents may supply him a copy of the same by hand, if he approaches the respondents within three days. Advance copy of the amendment application shall also be given to the learned Counsel of the respondent to enable the respondents to file their reply if any.
(Emphasis supplied)
2. The petitioner was given a copy of this order by the Registry of the Tribunal on 25.11.2011. According to his signature on Page-9 of the Contempt Petition, four days later, on 29.11.2011 he signed a request addressed to the Chief Executive Officer (Water & Sewage Disposal), Jhandewalan, New Delhi, and the same was received by the Respondents office on the same day on 29.11.2011. As is evident from Annexure R-2, dated 03.01.2012, the office to which he had submitted his representation had asked the Office of Commissioner, MCD, for a copy of the Appellate Authoritys order dated 14.09.1994 passed in the Petitioners case by the Commissioner (MCD) through their letter dated 07.12.2011, and Annexure R-2 dated 03.01.2012 was a reminder, so that a copy of that order could be handed over to the Petitioner. A reply dated 04.01.2012 through Annexure R-3 was issued from the Vigilance Department of MCD stating that although it is correct that during 1994, Delhi Jal Board was under the control of MCD, but it is also equally correct that the Vigilance Department of the MCD did not deal with the cases pertaining to the employees of Delhi Jal Board/then Delhi Water Supply, which were dealt with by their own department, at its own level, as is evident from the contents of the Office Order dated 09.03.2004.
3. The Petitioner again issued a reminder letter dated 27.01.2012, seeking a copy of the same order of the Appellate Authority, and not having received the same for another more than one month thereafter, he has filed this Contempt petition on 12.03.2012. He has chosen two names, Shri Ramesh Negi, Commissioner, Delhi Jal Board as the first Respondent, and also Shri Rakesh Mehta, former Chief Secretary of Delhi, as the second Respondent.
4. But the Contempt Petition got linked to the original case of the petitioner as the applicant in TA-1235/2009, and was heard and reserved for orders together.
TA-1235/2009
5. This Transfer Application was first filed as a Civil Writ Petition No.3905/1994 before the Honble Delhi High Court on 12.09.1994, and was transferred to this Tribunal through orders of the Honble Delhi High Court dated 18.03.2009. Thereafter the case came to be heard and the TA was allowed on 10.08.2009. However, the respondents Delhi Jal Board, Commissioner (MCD) and Lt. Governor, Delhi, filed a Review Application No.215/2009 with a C.P. No.12/2011 also being filed by the applicant/petitioner. The Review Application came to be allowed and this case was restored through order dated 31.03.2011, though the Contempt Petition No.12/2011 was closed by the same order. Thereafter, the hearing in this case started afresh once again. The case of the applicant can be best explained in brief by borrowing from the opening paragraph of the first order of this Tribunal dated 10.08.2009 in TA No.1235/2009, in which this case was summed up as follows:-
By virtue of this TA, applicant, who was working as Junior Engineer in Water Supply & Sewage Disposal Undertaking, challenges an order dated 9.3.1994 passed by the respondents imposing upon him a major penalty of removal from service. The allegations levelled in the Memorandum of charges were; unauthorized absence from 27.10.1987 to 21.3.1988 in different spells and till the service of the charge sheet i.e. on 25.2.1989. It was further alleged that he had been running absent from duty w.e.f. 28.3.1988 in an unauthorized manner, his failure to appear himself before the M.O.I. for medical checkup as directed by EE(P)W-II and also on the charge that he is in the habit of availing leave/remaining absent without getting the leave sanctioned, he submitted leave applications after availing leave due to which municipal work suffers badly. The Inquiry Officer established all the charges proved, except the charge of not reporting to the Medical Officer for medical checkup. A show cause notice vide Memorandum dated 24.12.1993 issued by the Disciplinary Authority proposed the penalty of removal from service, which was confirmed on receipt of the reply from the applicant, which when challenged in an appeal, on affirmation, given rise to the present TA.
6. Thereafter the Bench went on to allow the TA by making the following observations:-
7. On a careful consideration of the contentions put forth by learned counsel for applicant and on perusal of the reply filed by the respondents, we are of the considered view that the show cause notice issued to the applicant was under Regulations of the Delhi Water Supply & Sewage Disposal Undertaking, which comes under the MCD and the penalty has been proposed; whereas the Regulation position is that after furnishing the enquiry report and on receipt of the representation, the penalty has to be determined.
8. In the above view of the matter by proposing the punishment, the Disciplinary Authority has pre-determined the issue which shows his bias towards the applicant. Moreover, pursuant to Union of India & Ors. vs. Mohd. Ramzaan Khan, JT (1990) 4 SC 456. what is to be done after 1.11.1990 is to submit to the delinquent a copy of the enquiry report and to ask for his representation on the basis of which the final order is to be issued whether the penalty is to be inflicted. The aforesaid dicta has been upheld by a Constitution Bench in Managing Director, ECIL, Hyderabad vs. B. Karunakar, JT (1993 6 SC 1). The proposal of punishment and affirmation of it later on cannot be sustained in law.
9. The Disciplinary Authority passed a bald order without dealing and considering the grounds taken by the applicant in his representation which cannot be sustained in the light of the decisions of the Apex Court in Divisional Forest Officer, Kothagudem & Ors. vs. Madhusudhan Rao, (2008) 3 SCC 469.
10. Leaving other grounds open, the TA is allowed. The impugned orders are set aside. Respondents are directed to reinstate the applicant in service. However, we make it clear that the interregnum period shall hold good only for qualifying service and not for any other benefits and back wages. The compliance shall be done within a period of three months from the date of receipt of a copy of this order. No costs.
7. Later, when the respondents had as Review Applicants challenged the ex-parte order allowing the T.A., they had submitted that they did not have any knowledge of listing of the case, but their Review Application was first dismissed on 17.11.2009. This dismissal of the Review Application was then challenged by the respondents before the Delhi High Court in W.P. (C ) No. 1730/2010, in which, on 14.12.2010, the Honble Delhi High Court ordered setting aside the order dated 17.11.2009 in the RA No.215/2009, and it was restored, with a direction that the Tribunal would dispose of the said RA, and if need be to recall its order dated 10.08.2009 in the T.A., and thereafter dispose of the TA after hearing both the parties. It was after this that RA No.215/2009 was heard and allowed on 31.03.2011, and this TA No.1235/2009 was restored to its original position.
8. The applicant had approached the Honble Delhi High Court with the prayer for quashing and setting aside the order dated 09.03.1994 (Annexure-G) passed by Shri Ashok Kumar, the then Additional Commissioner (Water), as the Disciplinary Authority. The disciplinary enquiry had been completed. A copy of the enquiry report had been supplied to the applicant, and he had also submitted his representation on the enquiry report, and after considering the findings of the Inquiry Officer and the representation of the applicant with reference to the enquiry report, the Disciplinary Authority had also given him a hearing personally, and had proposed a penalty of removal from service, which shall not be a disqualification for future employment, and had issued a show cause notice accordingly in 1993, to which also the applicant had submitted his reply, which was taken into consideration by the Disciplinary Authority before confirming the penalty of Removal from service, which shall not be a disqualification for future employment.
9. We have heard the two cases together. The applicant had prayed before Honble Delhi High Court for issuance of a writ of mandamus, directing the respondents to reinstate him on duty with full back wages, and had taken six grounds in support of his contention after the 12 preliminary Paragraphs in the Writ Petition. On the date of filing of the Writ Petition on 12.09.1994, the appeal of the applicant was pending before the Appellate Authority, and just two days later, on 14.09.1994, the order of the Appellate Authority appears to have been passed. However, in his Writ Petition as filed before the Honble High Court, and the documents annexed to it, the applicant/Writ Petitioner did not mention anywhere regarding his appeal being still pending, and the Paragraphs 11 & 12 of his Writ Petition, including the Grounds (I to VI), nowhere stated about the pendency of the statutory appeal, and Paragraph-13 blandly stated that he had not filed any other similar petition before the Honble High Court, and before the Honble Supreme Court in this matter.
10. In fact, in their counter affidavit dated 04.04.1995 filed by the respondents before the Honble Delhi High Court, the sequence of events leading to removal of the applicant from his services was given in Paragraph-11 as follows:-
02.05.1989 Charge Sheet vide Memo No. WSU/VIG/Disp./Major/89/CS-21/1660 12.02.1990 Reply submitted by the petitioner to the Charge Sheet 17.06.1991 Enquiry Officer submitted his report.
12.09.1991 Copy of the Enquiry Report supplied to the Petitioner for his comments and the Petitioner has submitted his representation accordingly.
24.12.1993 Show Cause Notice vide memo No. WSU/Vig./RDA-13/Major/93/6202 was issued to the Petitioner.
09.02.1994 The Petitioner sent his reply.
09.03.1994 The Disciplinary Authority after having gone through the reply of the petitioner to the Show Cause Notice, findings of the enquiry Officer, facts of the case and having heard him personally, confirmed the penalty of removal from service.
25.07.1994 An appeal was preferred by the petitioner to the Appellate Authority, i.e. Commissioner, M.C.D. 14.09.1994 After having considered the appeal, the same was rejected and the penalty was confirmed.
The answering respondent humbly submit that the petitioner has concealed the material facts inasmuch as the aforesaid appeal that was preferred by him vide letter dated 25.07.1994 and which was considered in accordance with law and was subsequently rejected was clearly within the knowledge of the petitioner.
(Emphasis supplied)
11. While filing his rejoinder affidavit before the Honble High Court on 05.02.1996, in Para-11 the applicant/Writ Petitioner had not controverted the submissions of the respondents made in their Counter-Affidavit, and had instead stated as follows:-
11. It is submitted that the Authorities has not applied its Judicial mind at the time of deciding the representation of the petitioner. It is submitted that the petitioner has not filed any appeal directly in the office of the Commissioner of M.C.D. The petitioner has submitted one page letter of request to Shri Jitender Prasad (Political Advisor) to the Honble Prime Minister. Petitioner received no reply or response in this regard from any office. The petitioner never appeared before any Authority in this regard and that one page letter without Court Fee and without any affidavit and which can never be treated as an appeal without mentioning any section or provision. It is pertinent to mention here that the petitioner has never received any letter or information in this regard from the office of the Commissioner.
(Emphasis supplied).
12. In the rejoinder affidavit filed on 05.02.1996, it was no where denied that the applicant had sent his reply on 09.02.1994 to the Disciplinary Authority, and that later he had preferred an appeal before the Appellate Authority, i.e., Commissioner, MCD on 25.07.1994. The averment made before the Honble High Court as re-produced above only mentioned that the respondents had not applied their judicial mind at the time of deciding the representation of the applicant. It is seen that only when on 24.11.2011, in the 6th hearing of this TA case before this Tribunal, the learned counsel for the respondents pointed out that the applicant had never challenged the order of the Appellate Authority in the OA, the learned counsel appearing for the applicant, for the first time sought instructions and submitted that he could not do so because he did not get a copy of the order of the Appellate Authority from the respondents so far. Through this strategy, an issue regarding non-receipt of a copy of the order of the Appellate Authority, which had remained unchallenged in the pleadings before the Honble High Court, from the date of the counter affidavit filed by the respondents on 04.04.1995 onwards, was freshly introduced by the applicant, after a gap of more than 16 years of the pendency of his case, which he had failed to mention even in his rejoinder affidavit filed more than 15 years back before the Honble High Court on 05.02.1996.
13. The Bench that day on 24.11.2011 had however taken the submission of the learned counsel for the applicant on its face value, and had issued the directions as re-produced in this order in the opening Paragraph-2, while discussing the Contempt Petition filed by the applicant as a petitioner. That interim order had further clearly directed the applicant to approach the respondents within three days to obtain a copy of the order of the Appellate Authority. A copy of the order dated 24.11.2011 was issued to the applicant on 25.11.2011, but he submitted his request for compliance with the orders of this Tribunal not within three days, but after four days, on 29.11.2011, i.e, one day late than the three days time period allowed to him for doing so by the Bench on 24.11.2011.
14. Be that as it may, firstly the applicant cannot be allowed to introduce a new plea 16 years later than when he could have taken the plea before the Honble High Court, during the pendency of the Civil Writ Petition before the Honble High Court, and secondly he had also himself submitted that he had not filed a proper appeal before the Appellate Authority, and thirdly he had himself delayed in approaching the authorities within three days in this regard. Therefore, the Contempt petition is not maintainable in this case.
15. As regards the merits of the case, in his Writ Petition (now T.A.) the applicant had relied upon the joining report given by him on 15.01.1990, stating that he was absent from duty from 28.3.1988 to 14.01.1990, i.e. for nearly 22 months, since he was seriously ill, and now he wants to join duty in the forenoon of 15.01.1990, and the medical certificates with fitness certificates were also enclosed. His immediate superior had recorded on his joining report that the applicant was actually absent from duty w.e.f. 12.12.1987, before he joined duty in between, only for four days from 22nd to 25th March 1988 (26 & 27 March 1988 being holidays). He was, therefore, directed to report for duty before the next superior officer, because he was reporting for duty after a lapse of about 2 years, and was sent to the C(LO) Link House. At pages 51,52,53 & 54 of the Writ Petition filed by the applicant (now T.A.), he had submitted medical prescriptions from one Dr. A. Arora of Delhi, and an X-Ray Report from Dr. S.S. Garg of Aligarh, for trying to prove his illness from 19.1.1987 to 22.05.1990, and two reports of his X-Rays by Dr. S.S. Garg from 19.01.1987 to 22.05.1990, the first one being dated 20.01.1987 referred by Dr. A. Arora, and second being his Chest X-Ray Report dated 31.01.1990.
16. In their counter affidavit, the respondents had clearly pointed out that the applicant had been absenting himself from his duty on a regular basis, and had even availed considerable Leave Without Pay (Extraordinary Leave) because he had no leave to his credit in the year 1987. They had pointed out that he had remained absent from duty unauthorisedly from 27.10.1987 to 01.12.1987, and then from 03.11.1987 to 09.11.1987, and then again from 14.12.1987 to 21.03.1988, and then again from 28.03.1988 onwards till 04.03.1994, the date of removal from service. During this period, the applicant had never chosen to seek prior permission for his absence, nor did he intimate the respondents in regard to his inability to attend the duties. It was almost a habit of the applicant that he would absent himself, and leave application was submitted by him after availing leave without prior intimation, which is a serious misconduct, on account of which a show cause notice was given to the applicant on 24.12.1993, leading ultimately to the imposition of penalty of removal from service being inflicted upon him by the Disciplinary Authority. It was submitted that the applicant had been removed from service after conducting a proper enquiry as per Rules, and any wrong doing on the part of the respondents, or any deviation from the procedure prescribed in this behalf, was denied.
17. In his rejoinder affidavit filed before the Honble High Court on 05.02.1996, the applicant had taken a plea that he was always sending leave applications with medical certificates to the department. He had submitted that he was on duty w.e.f. 15.01.1990 upto 1992 after having been allowed to rejoin his duty on 15.01.1990, but it is seen from Annexure-H, page-43 of the Civil Writ Petition filed by the applicant himself, that the applicant filed the joining report on 16.01.1990, but did not mark attendance from 16.01.1990 to 18.01.1990, and thereafter papers were received regarding his joining only on 19.1.1990 (A/N), and he reported in the office of Executive Engineer (P) W-II on 22.01.1990 (20 & 21st January being holidays). It was also submitted by him that one LDC in the Division used to refuse to accept his applications for joining report, and that he was not absent voluntarily and deliberately, but that his absence was due to serious illness beyond his control.
18. Then, as cited above also, the applicant had gone on to state in the rejoinder affidavit that he had never filed any appeal directly in the office of the Commissioner of MCD, and had only tried to apply political pressure by addressing a one page letter of request to the Political Advisor to the then Honble Prime Minister. It is shocking that when the applicant has sworn on affidavit on 05.02.1996 that he had never filed any appeal directly in the office of the Commissioner of MCD, the learned senior counsel for the applicant had submitted that the order of the Appellate Authority on his appeal petition was not received by the applicant, and the applicant has had the cheek to swear an affidavit on 18.02.2012 in the Contempt Petition that he had never received the order of the Appellate Authority, while the averments of the respondents in their counter affidavit dated 03.04.1995 filed before the Honble High Court had remained un-controverted, and no submission was made by him before the Honble High Court that the appellate order dated 14.09.1994 had never been received by him.
19. The Delhi Jal Board was included as a party respondent on the basis of the applications filed before the High Court on 24.04.2007 and 01.05.2007. After the transfer of this case to this Tribunal, the applicant had filed a Miscellaneous Application No.633/2012 requesting for releasing of his pay for the period from June 1992 to 04.03.1994, claiming to have performed duty during this period, along with copies of Annexures MA-I dated 26.06.1992 regarding having submitted his re-joining report after availing 13 days E.L. from 13.06.1992 to 25.06.1992, which E.L. application also was submitted the same day on 26.06.1992, after availing leave. Along with this, he had also filed a copy of a Certificate dated 11.4.2011, in which the C.M.O. Incharge of J.N. Medical College Hospital, Aligarh Muslim University, had certified that the applicant is under treatment for Leprosy in that hospital since 31.3.2011. He has also filed as Annexure MA-2, a copy of the petition dated 11.2.1993 praying for the release of his salary from June 1992 onwards.
20. The learned senior counsel appearing for the applicant had forcefully argued the case, submitting that both the Enquiry Officer and the Disciplinary Authority had passed orders, which are wholly perverse, and that the applicant had reasons, supported with evidence, for all his periods of absence. He also submitted that the orders had been passed against the applicant in a mechanical manner, without application of mind, and are, therefore, vitiated. It was also submitted that the penalty imposed upon the applicant was disproportionate to the charge against the applicant.
21. We have carefully gone through the case file, and have given our anxious consideration to the case. As has been mentioned already in Para-14/above, the Contempt Petition does not survive, since the applicant cannot be allowed to raise a fresh plea after 16 years, of including a fresh pleading that the copy of the orders of the Appellate Authority had never been supplied to him, which plea he had not taken in his counter affidavit filed before the Honble High Court, as already mentioned above.
22. Further, the case of North Eastern Karnataka Road Transport Corporation vs. Ashappa, (2006) 5 SCC 137, goes against the applicant, in which case the Honble Apex Court has held that habitual absenteeism can be a valid ground for dismissal of an employee from service by stating as follows:-
8. Remaining absent for a long time, in our opinion, cannot be said to be a minor misconduct. The Appellant runs a fleet of buses. It is a statutory organization. It has to provide public utility services. For running the buses, the service of the conductor is imperative. No employer running a fleet of buses can allow an employee to remain absent for a long time. The Respondent had been given opportunities to resume his duties. Despite such notices, he remained absent. He was found not only to have remained absent for a period of more than three years, his leave records were seen and it was found that he remained unauthorisedly absent on several occasions. In this view of the matter, it cannot be said that the misconduct committed by the Respondent herein has to be treated lightly.
9. In Delhi Transport Corporation v. Sardar Singh this Court opined: (SCC 579 para 11) "11. Conclusions regarding negligence and lack of interest can be arrived at by looking into the period of absence, more particularly, when same is unauthorised. Burden is on the employee who claims that there was no negligence and/or lack of interest to establish it by placing relevant materials. Clause (ii) of para 4 of the Standing Orders shows the seriousness attached to habitual absence. In clause (i) thereof, there is requirement of prior permission. Only exception made is in case of sudden illness. There also conditions are stipulated, non-observance of which renders the absence unauthorised."
23. In State of Rajasthan vs. Mohd. Ayub Naz: 2006 SCC (L&S) 175, the Honble Apex Court held as under, which also goes against the applicants case:-
9. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services. In order to mitigate the rampant absenteeism and wilful absence from service without intimation to the Government, the Government of Raj as than inserted Rule 86(3) in the Rajasthan Service Rules which contemplated that if a government servant remains wilfully absent for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. In the instant case, opportunity was given to the respondent to contest the disciplinary proceedings. He also attended the enquiry. After going through the records, the learned Single Judge held that the admitted fact of absence was borne out from the record and that the respondent himself had admitted that he was absent for about 3 years. After holding so, the learned Single Judge committed a grave error that the respondent can be deemed to have retired after rendering of service of 20 years with all retiral benefits which may be available to him. In our opinion, the impugned order of removal from service is the only proper punishment to be awarded to the respondent herein who was wilfully absent for 3 years without intimation to the Government. The facts and circumstances and the admission made by the respondent would clearly go to show that Rule 86(3) of the Rajasthan Service Rules is proved against him and, therefore, he may be removed from service
24. In L&T Komatsu vs. N. Udaya Kumar: 2008 (1) SCC 224, the Honble Apex Court held as under, which also goes against the applicants case:-
8. So far as the question whether habitual absentism means the gross violation of discipline, it is relevant to take note of what was stated by this Court in M/s. Burn & Co. Ltd. v. Their Workmen and Ors. [AIR 1959 SC 529] "There should have been an application for leave but Roy thought that he could claim as a matter of right leave of absence though that might be without permission and though there might not be any application for the same. This was gross violation of discipline. Accordingly, if the company had placed him under suspension that was in order. On these findings, it seems to us that the Tribunal erred in holding that it could not endorse the Company's decision to dispense with the services altogether. In our opinion, when the Tribunal upheld the order of suspension it erred in directing that Roy must be taken back in his previous post of employment on the pay last drawn by him before the order of suspension."
25. In the result, the T.A. is liable to be rejected. In view of the incorrect submissions made by the learned senior counsel, on instructions from the applicant, before a Coordinate Bench on 24.11.2011, even though we may pardon him for having committed a perjury, we are inclined to impose heavy costs upon the applicant for making incorrect submissions before the Tribunal amounting to perjury. However, in view of the poor financial condition of the applicant, we desist from imposing any costs upon the applicant, in this case, as an exception.
26. Therefore, the TA is rejected, but there shall be no order as to costs. The Contempt Petition is dismissed as not maintainable, and the notices issued are discharged.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.