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Judgment
Elipe Dharma Rao, J.—The first respondent was a Driver with the writ petitioners and a charge memo was issued to him on 24.2.1994, on
allegations that he unauthorisedly absented from attending duty from 13.5.1993 to 26.11.1993 and did not carry out the instructions of the Senior
Superintendent of Post Offices, Nilgiri Division to rejoin duty and even though he was due to report for duty from 27.11.1993, he did not send any
intimation to the authorities concerned till 20.1.1994 and that he was arrested in Cr. No. 1435 of 1993 by the Annathanapatty Police, Salem on
24.11.1993 and was released on conditional bail on 30.11.1993, but he did not report the matter to the officials immediately, but only on
20.1.1994. A departmental enquiry was conducted, wherein the Enquiry Officer, by his report dated 24.10.1994, held that all the three charges
levelled against the delinquent employee were proved. Thereupon, accepting the report of the Enquiry Officer, the disciplinary authority/the Senior
Superintendent of Post Offices, by his order dated 4.1.1995, imposed a punishment of removal from service on the respondent. The appeal
preferred by the first respondent to the second writ petitioner herein viz. the Director of Postal Services was rejected, by the order dated
6.7.1995. Aggrieved, the first respondent filed a revision before the first writ petitioner, who, by his order dated 18.7.2002, has modified the
penalty of removal from service to one of compulsory retirement. Challenging the same, the first respondent herein has filed O.A. No. 1147 of
2003 before the Central Administrative Tribunal, Chennai Bench and since the said O.A. was allowed by the Tribunal, directing the respondents
therein to reinstate the applicant back in service, but without back wages, the respondents therein have come forward to file this writ petition.
The admitted fact is that the first respondent was granted medical leave for 15 days from 28.4.1993 to 12.5.1993 and even from the affidavit of
the writ petitioners, it is seen that instead of rejoining duty at Nilgiris, the first respondent sent medical certificate and leave applications for 16 days
from 13.5.1993 to 28.5.1993 and 30 days from 29.5.1993 to 27.6.1993 and 28.6.1993 to 27.7.1993 to the Senior Superintendent of Post
Offices, Salem East Division, who is said to have no control over the first respondent since he was already transferred from Salem. However, the
fact remains that the first respondent was sending his leave applications to the authorities and was never silent about his leave. It is also seen that
for the telegrams sent by the authorities to join duty also, the first respondent sent a reply on 21.7.1993 informing the office of the Senior
Superintendent of Post Offices, Nilgiris that he was preparing for the IMM Examination to be held in August, 1993 and requested for leave upto
that period. This is commented by the petitioners that from this reply of the first respondent itself it is clear that the medical leave applied for by the
first respondent is not on genuine grounds. But, it is to be pointed out that if the petitioners had any doubt about the genuineness of the medical
certificates submitted by the first respondent, in support of his medical leave, they should have referred him for the Medical Board, which they did
not do.
Further more, the first respondent has submitted to the writ petitioners that though he was due to report for duty from 27.11.1993, he could not
join duty owning to compelling reasons beyond his control and reported to duty on 20.1.1994. It is also to be noted that the first respondent was
transferred from Salem to Nilgiris and before joining duty, that too after medical leave, we can presume that he requires some time to settle his
family and move to the new station. Probably, this would have been a reason for the first respondent in reporting belatedly on 20.1.2004, which in
our considered opinion, does not amount to a serious misconduct, that too calling for a major punishment of removal from service, depriving his
livelihood. Just for the reason that the first respondent submitted that he is preparing for IMM Examination, it cannot be said that the first
respondent has applied for medical leave, only based on a bogus medical certificate. Except a mere allegation of the petitioners that the medical
leave of the delinquent officer was based on a bogus medical certificate, there is no material on record to show that it was on bogus medical
certificate. As has already been pointed out supra, if such is the case, the petitioners could have referred the respondent for a Medical Board,
which they did not do and therefore, the writ petitioners cannot be permitted to take such a stand now. While on medical leave, the first
respondent might have prepared for the IMM Examination also, which cannot be taken as a telling factor against his character. In such
circumstances, the petitioners should have been lenient enough while dealing with the case of the respondent since no other serious charge like
misappropriation of public funds or misuse of authority has been alleged against him and further more, no bad antecedents are also brought against
the first respondent.
At this juncture, the learned Assistant Solicitor General appearing on behalf of the writ petitioners would cite a judgment of the Honourable
Apex Court in Delhi Transport Corporation Vs. Sardar Singh, , wherein it has been held:
When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of the record, come to a conclusion about
the employee being habitually negligent in duties and an exhibited lack of interest in the employer''s work. Habitual absence is a factor which
establishes lack of interest in work. There cannot be any sweeping generalization. But, at the same time, some telltale features can be noticed and
pressed into service to arrive at conclusions in the departmental proceedings. The charge in the instant case was absence without obtaining leave in
advance. The conduct of the employees in this case is nothing but irresponsible in extreme and can hardly be justified. The charge in this case was
misconduct by absence. In view of the Governing Standing Orders unauthorized leave can be treated as misconduct. Thus the order of the Tribunal
refusing to accord approval primarily on the ground that in most cases the leave was treated as leave without pay and that being the position, it
cannot be said that the absence was unauthorized, would be liable to be set aside.
In the above case, the employee was a habitual absentee, which was viewed very serious by the Honourable Apex Court. As has been
observed by the Honourable Apex Court in the above judgment itself, there cannot be any sweeping generalization and each case has to be
decided on its own merits. In the case on hand, it was not at all the case of the writ petitioners that the first respondent was a habitual absentee and
no bad antecedents are also brought to our notice. Therefore, the above judgment of the Honourable Apex Court could be factually distinguishable
and cannot be made applicable to the case on hand.
The other charge alleged against the first respondent is that he did not report about his arrest immediately to the officials. There is no dispute
regarding the fact that the first respondent was arrested in Cr. No. 1435 of 1993 by the Annathanapatti Police, Salem on 24.11.1993 and he was
released on conditional bail on 30.11.1993 and the first respondent informed about his arrest and detention to the authorities concerned on
20.1.1994.
It is alleged that thus, the first respondent has failed to follow the provisions of Rule 18 of P&T Manual Volume-III. Therefore, we feel it
appropriate to extract the said Rule, for better appreciation of the facts and circumstances of the case. The said Rule reads as follows:
It is the duty of a Government servant who may be convicted by a Court of law or arrested to inform his official superior of the fact of his
conviction and the circumstances connected therewith as soon as it is possible for him to do so. Failure in this regard will be regarded as
suppression of material information and will render him liable to disciplinary action on this ground alone apart from the penalty called for on the
basis of the offence on which his conviction was based.
Thus, it is clear that the employee is required to inform about his conviction or arrest to his official superior as soon as it is possible for him. In
the case on hand, it is not the case of the writ petitioners that the respondent did not at all inform about his arrest, but that he has not informed
immediately. When the Rule mandates that the employee could inform to his official superior as soon as it is possible for him and when the
respondent in the case on hand, in all his fairness, informed about his arrest to the authorities concerned on 20.1.1994, it cannot be said that the
respondent has failed in his duty, so as to say that he is at fault, requiring action under this provision of law.
No details regarding the case in Cr. No. 1435 of 1993 of the Annathanapatty Police, Salem is made available before us by either of the parties.
But, from the order of the Tribunal, we are able to understand that the criminal case was registered against the first respondent on the complaint
lodged by the third writ petitioner alleging that some parcels, worth Rs. 3,75,000/- transported from Salem Junction to Sevvapet Sub-office were
found missing. The pertinent point to be mentioned is that this FIR was closed by the Judicial First Class Magistrate No. IV, Salem on 25.6.1999,
as barred by limitation. No disciplinary proceeding for the alleged missing of the parcels was initiated against the first respondent. In these
circumstances, there is no basis to accuse the first respondent on the ground of the said criminal case also.
As has already been stated supra, only based on the complaint lodged by the third petitioner, the criminal case was registered against the first
respondent, leading to his arrest. Therefore, the learned Counsel for the first respondent would submit that as per Rule 12(4)(ii) of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965, the disciplinary authority, who is the complainant against the first respondent/employee
should have referred the case to Government for nomination of an ad hoc disciplinary authority. The said Rule reads as follows:
(ii) When the Competent Authority is unable to function as the Disciplinary Authority - In a case where the prescribed appointing or Disciplinary
Authority is unable to function as the Disciplinary Authority in respect of an official, on account of his being personally concerned with the charges
or being a material witness in support of the charges, the proper course for that authority is to refer such a case to Government in the normal
manner for nomination of an ad hoc Disciplinary Authority by a Presidential Order under the provisions of Rule 12(2) of CCS (CCA) Rules, 1965.
Where the officer who is the prescribed Disciplinary Authority is/will be the complainant and/or the witness in a disciplinary proceeding, another
officer should be specified as Disciplinary Authority by a special order of the President under Rule 14(2) of the CCS (CCA) Rules, 1957
[corresponding to Rule 12(2) of 1965 Rules].
Our endeavour to find any such communication from the third petitioner to refer the case to Government in the normal manner for nomination
of an ad hoc Disciplinary Authority, ended in failure. When, admittedly, the criminal case against the first respondent was registered at the behest of
the writ petitioners, as per the above Rule, the matter should have been referred to the Government for nomination of an ad hoc Disciplinary
Authority. But, in this case, the disciplinary authority/the third petitioner proceeded to continue the disciplinary proceedings and has passed the
order of removal from service, which was later modified by the Government, on revision, as one of compulsory retirement. Thus, this runs contrary
to the mandatory requirement of Rule 12(4)(ii) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which would lead
this Court to the conclusion that the third petitioner is biased against the first respondent.
The Tribunal, in its vivid order, has observed that having regard to the nature of the charges, the punishment imposed on the first respondent by
the writ petitioners is disproportionate. For all the above said reasons, we confirm this view of the Tribunal since as has already been observed, the
first respondent was not an habitual absentee and that no bad antecedents are also brought against him.
The Tribunal has considered all the facts and circumstances of the case in their proper perspective and has arrived at an irresistible conclusion
of ordering reinstatement of the first respondent, without backwages. On re-appreciation of the entire materials placed on record, we find no
reason to cause our interference into such a well considered and merited order passed by the Tribunal and therefore, this Writ Petition must fail.
In the result, this Writ Petition is dismissed. No costs. The writ petitioners are directed to implement the order of the Tribunal within six weeks
from the date of receipt of a copy of this order.