Central Administrative Tribunal - Delhi
Shri Rakesh Kumar Suri vs Union Of India & Others on 4 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 999/2012 New Delhi this the 3rd day of April, 2012 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Shri Rakesh Kumar Suri, (Aged 47 years) S/o Shri Kishan Lal, R/o H. No.6, New Janakpuri, Ambala Cantt. (Haryana). Applicant (By Advocate: Shri A.K. Bhakt) Versus Union of India & Others, through 1. The Secretary, Ministry of Textile, Govt. of India, Udyog Bhawan, New Delhi. 2. Development Commissioner (Handicrafts), Ministry of Textiles, Govt. of India, R.K. Puram, West Block-7, New Delhi. 3. The Regional Director, Northern Regional Office, Office of D.C. (H), West Block-8, R.K. Puram, New Delhi. ..Respondents ORDER (Oral) Honble Mrs. Meera Chhibber, Member (J):
Applicant has challenged order dated 23.11.2011 and has sought direction to the respondents to allow him to join the duties.
It is stated by the applicant that he was initially engaged as daily wager in April, 1984 with respondents. He rendered his service honestly and diligently to the entire satisfaction of his superiors. He was thus appointed as Store Keeper-cum-Clerk in the pay scale of Rs.950-20-1150 with effect from 6.5.1987 to 5.11.1987 for a period of 6 months purely on ad hoc and temporary basis vide order dated 6.5.1987. In the meantime, applicant was called for interview vide letter dated 16.9.1987 to prepare for interview for the post of Store Keeper-cum-Clerk and finally he was appointed to the post of Store Keeper-cum-Clerk on 30.10.1987 in substantive capacity and transferred from Parliament to Okhla vide order dated 5.8.1993. He was given memo dated 6.10.1993 calling upon him to report for duty immediately as he has been absent since 1.9.1993, failing which suitable action as per rules will be taken against him. On receiving this, applicant immediately gave an application on 13.10.1993 requesting to allow him to join the duties by stating that his mother has been ill since 1.9.1993. He resumed duties on 15.10.1993 but again fell sick on 18.10.1993, therefore, he moved an application for one day Casual Leave on 19.10.1993. Thereafter, he gave number of representations dated 25.10.93, 26.10.93, 2.11.93, 24.11.93, 17.11.93, 17.1.94, 14.2.1994, 17.3.1993, 16.5.1994, and 15.7.1994 for extension of leave on medical grounds and sought leave till 13.9.1994. Thereafter his wife fell ill and he could not resume duties on 15.9.94, 14.11.1994, 14.1.1995, 14.3.1995, 14.5.1995, 13.7.1995 and prayed for extension of leave till 13.9.1995. Unfortunately, thereafter, applicant fell mentally sick. He was under treatment in the Institute of Human Behavior and Allied Science, Dilshad Garden, Delhi, since 5.7.2001. He became fit for resuming duty on 2.1.2005 and requested the authorities to respond to his representation dated 5.1.2005 but the respondents did not respond to it. He again fell sick from 22.5.2005 to 15.3.2007 and was under treatment at Aastha Neuropsychiatric Centre near A.P. Jain Civil Hospital, Rajpura. He failed to join duties on 16.3.2007 and he served a legal notice to the respondents on 5.4.2007 through his counsel whereupon applicant was asked to submit all the documents of his leave which were given by the applicant. At this stage applicant filed OA No. 1106/200. During the pendency applicant was called to appear in person in response to office order dated 26.6.2009. In view of above, the OA was disposed of on 18.2.2010 with direction to the respondents to follow up on their own initiative with reference to the original records and to finalize the matter within a reasonable period in accordance with law. Instead of considering his case, respondents issued order dated 23.11.2011 terminating his services with effect from 26.10.1993. It is in these circumstances that applicant has filed the present OA on the ground that he was absent due to illness and had given representations from time to time. He was neither given any show cause notice nor any disciplinary proceedings were initiated against him. He had thus prayed that the OA may be allowed.
We have perused the pleadings and the documents annexed by the applicant.
In the impugned order respondents have specifically noted that the applicant had been absent from duty unauthorisedly since 1.9.1993. He was called upon to report for duty vide order dated 6.10.1993 whereupon he reported for duty on 18.10.1993. He joined duty but again sought leave for 19.10.1993 but did not report for duty on the next working day, i.e., on 20.10.1993. He reported for duty on 25.10.1993 along with medical and fitness dated 23.10.1993. He again remained absent from 26.10.1993 to 1.11.1993. However, after 13.9.1995 applicant had not submitted any leave application as stated by him in the preliminary enquiry. They have thus observed that since applicant had remained unauthorisedly absent from duty since 26.10.1993 continuously the prolonged unauthorized absence cannot be regulated under any of the rules or under CCS (Leave) Rules, 1972. They have also stated that he was initially appointed on purely ad hoc basis for a period of six months with effect from 6.5.1987 and was not a regular employee, therefore, his services are deemed to have been terminated with effect from 26.10.1993.
From above, it is clear that applicant was absenting himself unauthorisedly off and on. Initially he submitted the medical certificates but thereafter he did not even give any application and was continuously absent with effect from 26.10.1993. As per averment made by the applicant, he approached the respondents for allowing him to join duty only in 2005, i.e., after 12 years but no order was passed by the respondents. Even at that stage, applicant did not approach the court. He approached this Tribunal for the first time in 2009 by filing OA No. 1106/2009 which was disposed of on 18.2.2010 by directing the respondents to follow up on their own initiative with reference to the original records and to finalize the matter within a reasonable period in accordance with law (page 22). Perusal of the order dated 18.2.2010 shows that respondents had sought permission of the court to file an additional affidavit to clarify certain aspects but the said permission was not granted meaning thereby that the case was not adjudicated upon by the Tribunal on merits. Even at this stage applicant did not purse the matter with due diligence. The respondents finally passed order on 23.11.2011 explaining the facts as stated above and informed the applicant that his services stand deemed terminated with effect from 26.10.1993 as he has been continuously unauthorisedly absent from duty since then.
6. Applicant has now challenged order dated 26.10.1993 and has sought direction to the respondents to allow him to join the duties.
7. In the instant case, applicant had been absent unauthorizedly since 1993 and had stated to have given application up to 1995 whereas he approached the court first time in the year 2009, i.e. after over a period of 16 years from the date of absence, by filing O.A 1106/2009. This was disposed of on 18.02.2010 without examining the question of limitation by directing the respondents to examine the matter. It was pursuant to above direction that the respondents issued orders dated 23.11.2011, which has been challenged by the applicant in the present case.
8. According to us, this case is fully covered by the judgment of the Honble Supreme Court in Union of India Vs. M.K. Sarkar reported in 2010 (2) SCC 59 wherein it was held as under:-
14. The order of the Tribunal allowing the first application of the respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. When a belated representation in regard to a `stale' or `dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the `dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. Moreover, a Court or Tribunal, before directing `consideration' of a claim or representation should examine whether the claim or representation is with reference to a `live' issue or whether it is with reference to a `dead' or `stale' issue. If it is with reference to a `dead' or `stale' issue or dispute, the court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect. In view of above judgment it is clear that limitation has to be reckoned from the date of original cause of action and stale matters should not be entertained. If limitation has to be reckoned from 1993, definitely this OA is barred by limitation and can be termed as a stale matter, which cannot be entertained in view of the law as laid down in M.K. Sarkars case, as such limitation cannot be counted from the date order dated 23.11.2011 was passed but from 1993 when he stopped attending the work. Applicant is seeking permission to join the duties after over a period of 19 years.
9. At this juncture, it would further be relevant to refer to another judgment of the Honble Supreme Court in the case C. Jacob Vs. Director of Geology and Mining and Anr. reported in 2008 (10) SCC 115 wherein it was held as under:-
9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.
11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of `acknowledgment of a jural relationship' to give rise to a fresh cause of action.
12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice.
13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back-wages.
10. Same is the situation here. Applicant is seeking direction to the respondents to allow him to join the duties after 19 years, therefore, such a relief cannot be granted in view of the law laid down above.
11. Even otherwise, as per Rule 12 of CCS (Leave) Rules, 1972, no Government servant shall be granted leave of any kind for a continuous period exceeding five years unless the President in view of exceptional circumstances grant the same meaning thereby that the period beyond 5 years cannot even be condoned by the authorities. In this case respondents have specifically stated that applicant was continuously unauthroisedly absent from duty with effect from 26.10.1993 and even as per his pleadings he approached the authorities in 2005, i.e., after over a period of 12 years, therefore, naturally this period could not have been granted as leave by the respondents. Even after 2005 applicant took no steps by filing any OA or seeking joining of duty which shows applicant was not really interested in working. Simply giving representations is not sufficient. The medical certificates annexed by the applicant also do not show any such sickness for which a person could be unauthorisedly absent for such a long period. After all, if the authorities appoint a person for taking work from him, they can accommodate the employee on medical grounds for a limited period. If a person shows total neglect of his work and does not even bother to take permission of the authorities to avail leave, the authorities have only one option, i.e., to terminate the services of such persons. It is not open to the applicant to approach the Tribunal after over a period of 19 years to claim that he should be allowed to join the duties.
12. It would be also relevant to refer to the judgment of Honble High Court of Delhi in University of Delhi Vs. Suresh Chand reported in 2007 (2) A.D. Delhi 173 wherein it was held as under:-
Unauthorised absence from service, on the ground of ailment of anxiety and depression, improper - Held, very few persons today who are not suffering from one or other anxiety or depression -- If such medical certificates are acknowledged as valid medical certificates for long unauthorized absence, no work can be done in any of Government departments -- Tribunal order of reinstatement with full back wages set aside -- Writ petition allowed.
14. In view of above, we find no merit in this OA. The same is accordingly dismissed. No order as to costs.
(Dr.A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh