Central Administrative Tribunal - Delhi
Constable Chandermuni No.1874/Se vs Commissioner Of Police on 28 February, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2920/2013 Order reserved on 21st February, 2014 Order pronounced on 28th February, 2014 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) Constable Chandermuni No.1874/SE (PIS No.28861813) presently Posted at Police Station Okhla Industrial Area, South East-Distt. New Delhi. Also at Resident of Village Makanpur Bangar, PO Dankaur Gautam Budh Nagar, UP .. Applicant (By Advocate: Mr. G.S. Rana) Versus 1. Commissioner of Police, Delhi Through Joint Commissioner of Police South Eastern Range, Police Headquarters IP Estate, New Delhi 2. Addl. Dy. Commr. of Police South East District, New Delhi 3. Mr. Sheelwant Singh Inspr. /ATO, PS G.K.-I Enquiry Officer : Through Addl. DCP/S.E. Distt. New Delhi ..Respondents (By Advocate: Mr. K.M. Singh) O R D E R
Mr. A.K. Bhardwaj:
The applicant, Chandermuni, Constable (PIS No.28861813) in Delhi Police, was charged with the misconduct of unauthorized absence for a period of 252 days 23 hours and 35 minutes. The charge framed against him by the inquiry officer reads as under:-
I, Sheelwant Singh, Inspector (E.O.), charge you, Constable Chander Mani No.1874/SE (PIS No.28861813) that while you were posted in PS Badar Pur, New Delhi you had proceeded on 5+3 days Casual Leave on 19.06.2009. Your arrival was due on 28.06.2009 but you did not join your duty. Subsequently, your absent was recorded vide DD No.26 B dated 28.06.2009 PS Badar Pur New Delhi. You resumed your duty on 08.03.2010 vide DD No.25 B dated 08.03.2010 PS Badar Pur, New Delhi after absenting yourself from duty from 252 days 23 hours and 35 minutes willfully/unauthorisedly.
Two absentee notices were issued vide this office No.10208-12/SIP/SED, dated 30.07.2009 and 11147-49/SIP/SED dated 04.09.2009 with the direction to report for duty at once otherwise departmental action will be initiated against you.
On perusal of your previous record, it reveals that earlier you had also absented yourself on 48 different occasions which have already been decided as not spent on duty and also awarded two major penalties including dismissal but it shows that you have formed habit of absenting yourself from duty at your own sweet will.
The above act on the part of you, Constable (Exe.) Chander Mani No.1874/SE (PIS No.28861813) clearly shows that you have violated the provisions of CCS (Leave) Rules, 1972 and S.O. No.111 of Delhi Police, which amounts to gross misconduct, negligence and carelessness, highly irresponsible and dereliction in the discharge of your official duty and renders you liable for punishment under the provisions of Delhi Police (Punishment and Appeal) Rule-1980.
2. In response to the said charge, the applicant did not plead any guilty and preferred to submit his defence statement. In his defence, he submitted that on 19.6.2009 he proceeded to his hometown on 5+3 days casual leave where he fell sick and remained under treatment in Primary Health Centre, Rabbupura, Jewar, Gautambudh Nagar, Uttar Pradesh for pulmonary Tuberculosis (TB). According to him, he had informed PS Badarpur about the said rest but the information was not recorded and due to weakness and sickness it was not possible for him to come to Delhi to get permission for medical rest, as no one else was there at his home to do the needful. Finally, he stated that on being declared medically fit, he joined duty on 8.3.2010. It was also the stand taken by the applicant in his defence statement that in view of the ailment and constant medical supervision, it cannot be said that he ever remained absent from duty unauthorizedly. He also took the plea that over 300 days of earned leave and medical leave are due in his credit. Analyzing the defence of the applicant and the statements made by PW 1, 2, 3 and 4, the inquiry officer found the charge of unauthorized absence against the applicant proved. The inquiry officer also found that the applicant has a young / adult son, who could have given intimation to the department regarding applicants ailment, if any, thus the stand that there was no one available in his family to contact the concerned authority to seek leave, is incorrect. The discussion and conclusion recorded by the Inquiry Officer in his report dated 25.3.2012 read as under:-
In the written defence statement, submitted by delinquent, in response to the above allegations, it is submitted that during the casual leave he fell ill and remained under treatment at Primary Health Centre, Rabbupura, Jewar, Gautambudh Nagar, UP for pulmonary Corliss (TB). The doctor had advised him medical rest w.e.f. 27-6-2009. He informed duty officer PS Badar Pur about the said rest, but his information was not recorded. The excuse is very vague. He has a young/adult son, who could have given the intimation to the department. It clearly shows that he has violated the provisions of CCS (Leave) Rules, 1972 and S.O. No.111 of Delhi Police.
He further claimed that over 300 days of earned leave and medical leave are due in his credit, which shows that he is not habitual of taking leave and absenting himself from duty. This all happened due to the prolonged tuberculosis. As regards, showing 48 previous absents in his account, it is stated that these absents have already been regularised. Here also the delinquent is trying to misguide the authority as record of Fauzi Missal shows otherwise.
I have gone through the prosecution evidence, records available, statements of PWs, discussed above. During the said absence period, he did not send any information to the department. On perusal of his previous record, it reveals that earlier he had also absented himself on 50 different occasions, about fifteen occasions have already been decided as not spent on duty and also awarded two major penalties including dismissal, it shows that he has formed a habit of absenting himself from duty at his own sweet will. However delinquent Constable (Exe.) Chander Mani No.1874/SE, (PIS No.28861813) has submitted his defence statement and medical papers in support of his absentee periods. It seems that delinquent Ct. has remained absent for a period of 252 days 23 hours and 35 minutes unauthorizedly, willfully and without any rhyme or reason. The defence plea taken by the delinquent in his written statement are vague, hence cannot be relied upon.
Accepting the report of the inquiry officer, the disciplinary authority imposed the major punishment of forfeiture of three years service upon the applicant. The appellate authority upheld the said order. In the present Original Application filed by him, the applicant has assailed the penalty orders on several grounds pervaded in paragraph 5 (A) to (G).
3. During the course of arguments, learned counsel for applicant pressed only one ground and submitted that the absent report of the applicant had not been recorded under the supervision of the superior authority, i.e., the Inspector, thus it could not be viewed that he was absent from duty.
4. On the other hand, Mr. K.M. Singh, learned counsel for respondents submitted that the absence was recorded by the competent authority and two notices were sent to the applicant as per the said record only.
5. We heard the learned counsels for the parties and perused the records.
6. It is seen that the absence of the applicant was recorded vide DD No.25 B dated 8.3.2010 PS Badarpur, New Delhi. For easy reference, the English translation of the said report, placed on record by the applicant, is reproduced hereinbelow:-
D.D. NO.25 B dated 08-03-2010 P.S. Badarpur N.D. 44 Ct. Chander Muni No.1874/SE Arrival from Absence Time 11.35 a.m. it is recorded that the abovenamed constable having been absent for 252 days 23 hours and 35 minutes vide DD No.26 B dated 28.6.2009 in the Daily Diary has reported back. Reasons for absence have been produced in written statement which is enclosed with the carbon copy of this Daily Diary. Constable has been directed to report to Chittha Munshi for his duties. Copies of this D.D. entry shall be forwarded to the concerned officers by post. Sd.. A/C Note : True Copy
7. PW 1 Constable Prem Chand No.3315/SE, absentee clerk/SIP Branch South East District, New Delhi deposed in the inquiry that he was posted in SIP Branch, South East District, New Delhi and on 3.2.2012 in response to the notice in departmental inquiry instituted against the applicant he had come along with Fauzi Missal and absentee record in Police Station Greater Kailash-I, New Delhi, according to which two absentee notices, vide Nos.10208-12/SIP/SED dated 30.7.2009 and 11147-49/SIP/SED dated 4.9.2009, were sent to the home address of the applicant and as per record of Fauzi Missal, the applicant is a habitual absentee. PW 2 Constable Vijay Kumar No.2832/SE posting clerk/SIP Branch South East District, New Delhi produced the posting record of the applicant. PW 3 HC Pappu Ram No.2100/SE, MHC (R) PS Badarpur, New Delhi and PW 4 HC Bijender Kumar No.647/SE Chitha Munshi PS Badarpur specifically authenticated the unauthorized absence of the applicant. For easy reference, the statements made by the said PW 3 and PW 4, as referred to by the inquiry officer in his report, are extracted hereinbelow:-
PW3:- HC Pappu Ram No. 2100/SE, MHC (R) PS Badar Pur, New Delhi, deposed that he is posted as MHC(R) in PS Badar Pur, New Delhi. On 08.2.2012 in pursuance of notice in connection with DE of Constable Chander Mani No. 1874/SE, he has come to police Station Greater Kailash I, New Delhi. He produced original Daily diary register DD. No. 43B dated 19-6-2009 n which const Chander Mani No. 1874/SE had proceeded 5+3 days casual leave and he was due to return back from casual leave on 28-6-2009 but neither he come back on his duty nor he had given any sort of information. Thereby const Chander Mani No. 1874/SE was marked absent in daily diary vide DD No 26 B dated 26-6-2009 Police Station Badar Pur New Delhi. He resumed his duty on 08.03.2010 after absenting himself from duty for 252 days 23 hours and 35 minutes vide DD No. 25 B dated 08.03.2010 PS Badar Pur. The original daily diary entries were checked, copies of same are placed on file which are marked as Ex-Pw 3/A, Ex-Pw 3/B and Ex-Pw 3/C respectively.
PW4:- HC Bijender Kumar No. 647/SE Chitha Munshi PS Badar Pur, New Delhi, deposed that he is posted as Chitha munshi in PS Badar Pur, New Delhi. On 08.02.2012 in pursuance of notice in connection with DE of Constable Chander Mani No. 1874/SE, he had come to police Station Greater Kailash-I, New Delhi. As per Chitha Constable Chander Main No. 1874/SE remained posted from 30.10.2007 to 10.07.2011 in Police Station Badar Pur, New Delhi. He was deployed to perform general duties in Police Station. Const Chander Mani No. 1874/SE had proceeded 5+3 days casual leave and he was due to return back from casual leave on 28.06.2009 but neither he come back on his duty nor he had given any sort of information. Thereby const Chander Mani No. 1874/SE was marked absent. He resumed his duty on 08.03.2010 after absenting himself from duty for 252 days 23 hours and 35 minutes. His arrival is recorded vide DD No. 25 B dated 08.03.2010 PS Badar Pur, New Delhi. Original Chitha was checked for above dates;
In the written defence statement, submitted by delinquent, in response to the above allegations, it is submitted that during the casual leave he fell ill and remained under treatment at Primary Health Centre, Rabbupura, Jewar, Gautambudh Nagar, UP pulmonary Corliss (TB). The doctor had advised him medical rest w.e.f. 27.06.2009. He informed duty officer PS Badar Pur about the said rest, but his information was not recorded. The excuse is very vague. He has a young/adult son, who could have given the intimation to the department. It clearly shows that he has violated the provisions of CCS(Leave) Rules, 1972 and S.O. No. 111 of Delhi Police.
He further claimed that over 300 days of earned leave and medical leave are due in his credit, which shows that he is not habitual of taking leave and absenting himself from duty. This all happened due to the prolonged tuberculosis. As regards, showing 48 previous absents in his account, it is stated that these absents have already been regularized. Here also the delinquent is trying to misguide the authority as record of Fauzi Missal shows otherwise.
I have gone through the prsecution evidence, records available, statements of PWs, discussed above. During the said absence period, he did not send any information to the department. On perusal of his previous record, it reveals that earlier he had also absented himself on 50 different occasions, about fifteen occasions have already been decided as not spent on duty and also awarded two major penalties including dismissal, it shows that he has formed a habit of absenting himself from duty at his own sweet will. However delinquent Constable (Exe.) Chander Mani No. 1874/SE, (PIS No. 28861813) has submitted his defence statement and medical papers in support of his absentee periods. It seems that delinquent Ct. has remained absent for a period of 252 days 23 hours and 35 minutes anauthorizedly, willfully and without any rhyme of reason. The defence plea taken by the delinquent in his written statement are vague, hence cannot be relied upon.
8. In paragraph 5 (B) of the Original Application, the applicant has taken a specific plea that his absence was recorded by the duty officer vide DD No.25 B dated 8.3.2010 and not by the Inspector/SHO concerned, thus was in violation of circular No.6263-335/P. Cell (Vig.)/P. Misc. dated 6.6.2001. In the counter reply filed on behalf of the respondents the said plea is not denied. Nevertheless, such plea could be relevant only if the applicant could have taken a stand that he was not absent from duty and an authority not competent to do so could mark his absence. Its applicants own case that he was absent from duty for the period in question. The only explanation given by him for such absence is his ailment.
9. Regarding non-intimation to the competent authority, the applicant has tried to explain that there was no such person in his family who could take the responsibility to intimate the competent authority regarding his ailment and he himself was so weak and ill that could not have done the needful. We find that the medical prescriptions placed by the applicant on record are pertaining to his treatment as outdoor patient only. As per the address given by the applicant in memo of parties, he is resident of Village Makanpur Bangar, PO Dankaur, Gautam Budh Nagar, Uttar Pradesh and he availed the treatment from Primary Health Centre, Rabbupura, Jewar, Gautambudh Nagar, Uttar Pradesh as outdoor patient only. When the applicant was in a position to commute between the Primary Health Centre and his residence as outdoor patient, he could send at least one postal communication to his supervisory authority regarding his ailment and sought permission to stay on leave. It may be so that a government servant is entitled to leave but even if he has the leave due in his credit, he cannot remain absent from duty unauthorizedly. It is also born out of the record that the applicant remained absent from duty even earlier also on 48 different occasions. Unauthorized absence is root cause of indiscipline in the Government Departments and need to be viewed seriously. It is not the case of the applicant that he had taken prior permission or got the leaves sanctioned before availing the medical rest. As has been provided in Rule 7 of the CCS (Leave) Rules FRSR Part III, leave cannot be claimed as a matter of right and when the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it. For easy reference, the said rule is extracted herein below:
7. Right to leave Leave cannot be claimed as of right.
When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.
10. Rule 19 of the aforementioned rules provided for grant of leave on medical certificate to gazetted and non-gazetted Government servant. Even the said rule also provide for an application for leave on medical certificate. For easy reference, the rule is extracted herein below:
19. Grant of leave on medical certificate to Gazetted and non-Gazetted Government servants [(1) An application for leave on medical certificate made by-
(i) a Gazetted Government servant, shall be accompanied by a medical certificate in Form 3 given by a Central Government Health Service (CGHS) Doctor if such a Government servant is a CGHS beneficiary or by a Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by Competent Authority in respect of any particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:
Provided that the Gazetted Government servant who is a Central Government Health Service beneficiary, if at the time of illness, is away from CGHS area or proceeds on duty outside the Headquarters will produce Medical Certificate (MC) or Fitness Certificate (FC) in Form 3 and Form 5, as the case may be, given by an Authorized Medical Attendant;
(ii) a non-Gazetted Government servant, shall be accompanied by a medical certificate Form 4 given by a CGHS Doctor if such a Government servant is a CGHS beneficiary or by Government Hospital or by an Authorized Medical Attendant if he is not a CGHS beneficiary; and by an Authorized Doctor of the private hospital, recognized under CGHS/Central Services (Medical Attendance) Rules, 1944, in case of hospitalization or indoor specialized treatment duly approved by the Competent Authority in respect of particular kind of disease like heart disease, cancer, etc., for the treatment of which the concerned hospital has been recognized by the Ministry of Health and Family Welfare:
Provided that the non-Gazetted Government servant who is a CGHS beneficiary, if at the time of illness is away from CGHS area or proceeds on duty outside the Headquarters will produce M.C. or F.C. in Form 4 or 5, as the case may be, given by an Authorized Medical Attendant (AMA) or by Registered Medical Practitioner (RMP) if there is no AMA available within a radius of 8 kilometers (kms) from his residence or place of temporary stay outside his Headquarters and also in the circumstances when he finds it difficult to obtain MC or FC from a CGHS Doctor or an AMA; defining as clearly as possible the nature and probable duration of illness.] NOTE.- In the case of non-Gazetted Government servant, a certificate given by a registered Ayurvedic, Unani or Homoeopathic medical practitioner or by a registered Dentist in the case of dental ailments or by an honorary Medical Officer may also be accepted, provided such certificate is accepted for the same purpose in respect of its own employees by the Government of the State in which the Central Government servant falls ill or to which he proceeds for treatment.
(2) A Medical Officer shall not recommend the grant of leave in any case in which there appears to be no reasonable prospect that the Government servant concerned will ever be fit to resume his duties and in such case, the opinion that the Government servant is permanently unfit for Government service shall be recorded in the medical certificate.
(3) The authority competent to grant leave may, at its discretion, secure a second medical opinion by requesting a Government Medical Officer not below the rank of a Civil Surgeon or Staff Surgeon, to have the applicant medically examined on the earliest possible date.
(4) It shall be the duty of the Government Medical Officer referred to in sub-rule (3) to express an opinion both as regards the facts of the illness and as regards the necessity for the amount of leave recommended and for that purpose may either require the applicant to appear before himself or before a Medical Officer nominated by himself.
(5) The grant of medical certificate under this rule does not in itself confer upon the Government servant concerned any right to leave; the medical certificate shall be forwarded to the authority competent to grant leave and orders of that authority awaited.
(6) The authority competent to grant leave may, in its discretion, waive the production of a medical certificate in case of an application for leave for a period not exceeding three days at a time. Such leave shall not, however, be treated as leave on medical certificate and shall be debited against leave other than leave on medical grounds.
11. Rule 25 (2) of CCS (Leave) Rules specifically provides that the willful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. The Government of Indias decision reported at Sl. No. (3) below said rule reads as under:
(3) Action for unauthorized absence from duty or overstayal of leave The following decisions have been taken in consultation with the Departmental of Personnel and the Ministry of Finance:-
(i) When a temporary Government servant asks for leave in excess of the limits prescribed under Rule 14 (b) of the Revised Leave Rules, 1933 [now Rule 32 of the Central Civil Services (Leave) Rules, 1972] and if the circumstances are exceptional, a decision could be taken by the leave sanctioning authority to grant further leave in excess of the limits in consultation with the Ministry of Finance. Such cases should be referred to the Directorate.
(ii) When a temporary Government servant applies for leave beyond the prescribed limit of extraordinary leave and the leave sanctioning authority is not satisfied with the genuineness of the grounds on which further leave has been asked for, nor does it consider the grounds as exceptional, the leave cannot be granted. In such a case, the Government servant should be asked to rejoin duty within a specified date failing which he would render himself liable for disciplinary action. Disobedience of orders to rejoin duty within the specified period would afford good and sufficient reasons for initiating disciplinary action under CCS (CCA) Rules, 1965. If he rejoins duty by the stipulated date, he may be taken back to service ad the period of absence not covered by leave be treated as overstayal of leave and dealt with in accordance with the orders regarding regularization of overstayal of leave.
If the Government servant does not join duty by the stipulated date, it would be open to the disciplinary authority to institute disciplinary proceedings against him. If during the course of disciplinary proceedings he comes for rejoining duty, he should be allowed to do so without prejudice to the disciplinary action already initiated against him (unless he is placed under suspension) and the disciplinary action concluded as quickly as possible. The question of regularization of the period of overstayal of leave be left over for consideration till the finalization of the disciplinary proceedings.
(iii) If a Government servant absents himself abruptly or applies for leave which is refused in the exigencies of service ad still he happens to absent himself from duty, he should be told of the consequences, viz., that the entire period of absence would be treated as unauthorized entailing loss of pay for the period in question under proviso to Fundamental Rule 17, thereby resulting in break in service. If, however, he reports for duty before or after initiation of disciplinary proceedings, he may be taken back for duty because he has not been placed under suspension. The disciplinary action may be concluded and the period of absence treated as unauthorized resulting in loss in pay and allowances for the period of absence under proviso to FR 17 (1) and thus a break in service. The question whether the break should be condoned or not and treated as dies non should be considered only after conclusion of the disciplinary proceedings and that too after the Government servant represents in this regard.
2. It is made clear that a Government servant who remains absent unauthorizedly without proper permission should be proceeded against immediately and this should not be put off till the absence exceeds the limit prescribed in Rule 32 (2) 9a) of the CCS (Leave) Rules, 1972. However, the Disciplinary Authority should consider the grounds adduced by the Government servant for his unauthorized absence before initiating disciplinary proceedings. If the disciplinary authority is satisfied that the grounds adduced for unauthorized absence are justified, the leave of the kind applied for and due and admissible may be granted to him.
12. It is not so that the applicant remained absent only during the period mentioned by the inquiry officer in the discussion but he also remained absent earlier also on 48 different occasions, as referred to above.
13. In view of the past record of the applicant, we are not able to accept the plea of the applicant that his ailment such that he could not have obtained permission for medical rest leave. As far as his plea regarding consideration of his previous record, we find that in Rule 16 (xi), it is specifically provided that if the disciplinary authority considers it necessary, by taking into consideration his previous bad record and forming the same as definite charge against the delinquent and after giving him an opportunity to defend himself as required under the rules, may impose severe punishment upon the charged official. Thus, the mention of previous record of the applicant in the charge was in consonance with the provisions of Delhi Police (Punishment and Appeal) Rules, 1980. The misconduct of unauthorized absence becomes of greater magnitude when it is committed by the member of a disciplined force. Misplaced sympathy for indisciplined employees not only encourages the tendency of indiscipline in the individual who is benefited by such sympathy but would also send a wrong message to others and encourage indiscipline.
14. It is settled position of law that the absence from duty is root cause of indiscipline in government service, particularly in disciplined force. In Maan Singh v. Union of India & others, (2003) 1 SCC 329, it could be viewed that habitual absence on several occasions unauthorizedly is a grave misconduct and the penalty imposed upon the appellant was justified. Paragraph 11 of the said judgment reads as under:-
11. Relying on State of Punjab & Ors. vs. Ram Singh Ex-Constable, 1992 (4) SCC 54, one of the arguments advanced before us is that it is only in cases where the misconduct is of gravest kind an order of dismissal shall be made. This case was decided in the context of Rule 16.2(1) of the Punjab Police Manual, 1934, Vol. II. The said Rule reads as follows :-
"Dismissal shall be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service, in making such an award regard shall be had to the length of service of the offender and his claim to pension."
After analysing the said provision, this Court in Ram Singh's case held that Rule 16.2(1) consists of two parts, firstly, dismissal shall be awarded for the gravest acts of misconduct and secondly, cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service and the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The second part is referable to a misconduct which, by itself, may not warrant an order of dismissal and may be a ground to take a lenient view of giving an opportunity to reform and even after giving such opportunities, if the delinquent officer proved to be incorrigible and found completely unfit to remain in service then in order to maintain discipline in the service appropriate punishments can be given. Therefore, when the charge against the appellants in each of these cases is habitual absence for long periods on several occasions unauthorisedly, the view taken by the disciplinary authority is justified.
15. In State of U.P. & others v. Ashok Kumar Singh & another, (1996) 1 SCC 302, it could be viewed that the absence of the respondent from duty would amount to grave misconduct and there was no justification for the High Court to interfere with the punishment holding that the punishment was not commensurate with the gravity of the charge. Paragraph 8 of the said judgment reads as under:-
8. We are clearly of the opinion that the High Court has exceeded its jurisdiction in modifying the punishment while concurring with the findings of the Tribunal on facts. The High Court failed to bear in mind that the first respondent was a police constable and was serving in a disciplined force demanding strict adherence to the rules and procedures more than any other department. Having noticed the fact that the first respondent has absented himself from duty without leave on several occasions, we are unable to appreciate the High Court's observation that his absence from duty would not amount to such a grave charge'. Even otherwise on the facts of this case, there was no justification for the High Court to interfere with the punishment holding that 'the punishment does not commensurate with the gravity of the charge' especially when the High Court concurred with the findings of the Tribunal on facts. No. case for interference with the punishment is made out.
16. In Government of Tamil Nadu & another v. K. Rajaram Appasamy, JT 1997 (5) SC 178, it could be viewed that the Tribunal is wholly wrong in its direction to the appellants to pay 50% of the back wages from the date of his absence till the date of filing of the original application. Paragraph 3 of the said judgment reads as under:-
3. These appeals by special leave arise from the Order dated May 14, 1996 passed by the Tamil Nadu Administrative Tribunal, Madras in O.A. Nos. 2354, 2477 and 6373 of 1993. The admitted facts are that the respondent was working as a doctor. He proceeded on leave and made a representation on June 27, 1987 with regard to his posting. He did not report for duty for five years from May 1, 1982. A departmental enquiry came to be conducted against the respondent, under Rule 17 (b) of the Tamil Nadu Services (Discipline and Appeal) Rules. The competent authority removed him form service on the ground that the respondent was found to be unauthorisedly absent from duty for five year. The Tribunal is its impugned order set aside the order of his removal from service and directed to pay 50% of the back wage till the dated of filing of the original application and full back wages form the dated filing of the original applications till the dated of reinstatement. This Court issued notice confined to the question of respondent's entitlement to back wages. It would be obvious that the respondent did not choose to join the duty for five years. There is nothing on the part of the State Government which prevented the respondent from attending to his duties. Under these circumstance, the Tribunal is wholly wrong in its direction to the appellants to pay 50% of the back wages from the date of his absence till the date of filing of the original application and back wage thereafter till his reinstatement. Accordingly, the appeal are allowed and the direction to pay back wages stand set aside. No costs.
17. In Durga Prasad (05/RB) (Constable) v. Govt. of NCT of Delhi, 2003 (68) DRJ 63, the Honble High Court of Delhi could view that the unauthorized absence is misconduct grave enough for imposition of penalty upon the delinquent. Relevant excerpt of the said judgment reads as under:-
19. It is a well-settled principle of law that even if the period of absence, which had been regularized, is excluded, the same remains a misconduct which, in our opinion, would be sufficient to award dismissal of punishment. (See Binny Limited v. Their Workmen and Anr. ).
20. As regards the question raised by the learned counsel appearing for the petitioner that a separate notice was required to be issued to the petitioner for treating the said period of absence as dies non in terms of FR-17(A), we are of the opinion that it was not necessary to do so inasmuch as it was the disciplinary authority, who was to impose the said punishment. Furthermore, the petitioner had already been given an opportunity of hearing. The Rules do not provide for giving a further opportunity therefore, and as such the said submission cannot be accepted.
21. For the reasons aforementioned, there is no merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
18. In view of the aforementioned, we are not inclined to interfere with the impugned orders, the OA is found devoid of merit and is accordingly dismissed. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/