Delhi High Court
Ashok Kumar Aggarwal vs Delhi Vidyut Board on 6 February, 2003
Equivalent citations: 109(2004)DLT564, 2004(76)DRJ13, [2004(101)FLR302], (2004)IILLJ603DEL, 2004(2)SLJ491(DELHI)
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
1. RULE.
2. With the consent of the parties matter has been heard and disposed of by this order.
3. Petitioner was working as Executive Engineer with the respondent when he applied for two years extra-ordinary leave for higher studies abroad. Respondent considered the request of the petitioner favorably and granted extra-ordinary leave for two years for studies w.e.f. 15th July, 1994. Petitioner, after the expiry of the period of two years, did not return to India and instead wrote a letter dated 20th June, 1994 from California, USA with a request to sanction extra-ordinary leave for a further period of two years. The respondent duly considered the request of the petitioner and allowed further extra-ordinary leave for period of two years w.e.f. 15th July, 1996 to complete studies of M.S. in Electrical Engineering from West Coast University, Los Angeles, USA. A request dated 25th June, 1998 was again received from the petitioner for extension of extra-ordinary leave by three years. Respondents duly considered this request but did not grant leave as in the meanwhile, the petitioner was charge-sheeted in a vigilance case vide Memorandum dated 13.2.1998, which was duly served upon the petitioner at his last known address in the USA. Since the petitioner did not return despite his leave having not been sanctioned, the respondent on 17.3.1999 issued a memorandum to the petitioner proposing action against him under Regulation 7 of the Regulations for his willful unauthorised absence w.e.f. 15th July, 1998. According to the respondents by willfully absenting himself from duty unauthorisedly the petitioner had committed gross misconduct and had rendered himself liable for initiation of departmental and disciplinary action against him. The petitioner was duly served with the memorandum dated 17th March, 1999 but he did not chose to file reply to the same nor returned back for duty. By invoking Regulation 10 of the Regulations, respondent dispensed with the holding of the departmental enquiry and issued notice to the petitioner to show cause as to why his services should not be dispensed with. On receiving no reply, the respondent imposed the penalty of dismissal from service upon the petitioner. This petition has now been filed by the petitioner challenging the order of the dismissal and also for a direction to be given to the respondents to grant to the petitioner all retiral benefits.
4. The stand taken by the petitioner in the writ petition is that on 22.3.1999, the petitioner had written a letter to the respondent expressing his willingness to take voluntary retirement from service as it was not practically possible for him to continue to serve the respondent. It is submitted that once the petitioner had submitted the letter expressing his willingness to take voluntary retirement, the respondent could not dismiss him from service and in any case even on receipt of such letter since the respondent had not given any reply thereto, the offer of voluntary retirement would be deemed to have been approved by the respondent. In support of his contentions, the petitioner has relied upon the judgments reported as Union of India and others Vs. Sayed Muzaffar Mir- State of Haryana and others Vs. S.K. Singhal- and Manjushree Pathak Vs. Assam Industrial Development Corporation Ltd.- .
5. The respondents in the counter affidavit have denied their having received the letter dated 22.3.1999 alleged to have been written by the petitioner seeking voluntary retirement from service. It is stated in the counter affidavit that firstly no such letter was ever written and it was only an afterthought by the petitioner after he had received the memorandum dated 17.3.1999 whereby the respondent had initiated departmental proceedings against the petitioner. This categorical stand having been taken by the respondent in their counter affidavit, that letter dated 22nd March, 1999 was not received by them and no request for voluntary retirement was made by the petitioner, the same has not been rebutted by the petitioner. Instead of filing rejoinder to the counter affidavit wherein it was clearly asserted by the respondent that no such letter was received, learned counsel for the petitioner made a statement on 15.3.2002 that he did not wish to file rejoinder to the counter affidavit. The fact that the petitioner has not filed rejoinder to the counter affidavit clearly shows that he was not in a position to deny the allegations of the respondent that that letter dated 22.3.1999 was not received by them. I have, therefore, no reason to disbelieve the averments made on oath by the respondent in their counter affidavit that no request had been received from the petitioner seeking voluntary retirement. In this view of the matter, the judgments cited by learned counsel for the petitioner are of no assistance to him.
6. It is not denied that as per leave rules, the petitioner could not claim leave as a matter of right and leave having been refused by the competent authority, petitioner was required to join duty. Petitioner having remained absent unauthorisedly without sanction of the competent autority, disciplinary action was rightly taken against him. The services of the petitioner having been terminated after following procedure laid down by Regulations and no infirmity having shown therein, in my opinion, the petitioner is not entitled to any relief in this petition and the same is, accordingly, dismissed.