J K VARSHNEY Vs. U O I

JUDGEMENT

(1.) The pay of the petitioner was reduced by two stages from Rs. 7075/- to Rs. 6,725/- in the time scale of pay of Rs. 5500-175-9000 for one year pursuant to the Disciplinary inquiry by the punishment order dated 6th September, 2006 passed by the Disciplinary Authority and sustained by the Appellate Authority by its order dated 1st May, 2007 which were challenged by the petitioner in OA No. 954/2008 filed before the Central Administrative Tribunal, Principal Bench titled Jalaj Kumar Varshney Vs. UOI & Ors., which has been dismissed by order dated 10th July, 2009. The petitioner has challenged the order of the Tribunal dated 10th July, 2009 in the present writ petition under Article 226 of the Constitution of India.

(2.) The petitioner was absent from duty without intimation from 30th October, 2000 up to 23rd February, 2003. Thereafter, he joined for few months during which a memo dated 26th June, 2003 was issued to him directing him to submit his leave application for the said period of absence, which was ignored by him. Another reminder given to the petitioner dated 6th October, 2003 to seek leave for the period when he was absent unauthorizedly, was also ignored by the petitioner. During this period his user section, i.e., DIPR vide their note dated 16th April, 2003 had also directed him to report to their coordinating section, i.e., R&D (Pers.) which note was handed over to the petitioner on 17th April, 2003, however, the petitioner declined to accept the same and act according to the note, resulted into insubordination and disobedience. Even after ignoring filing of the application for leave for the period 30th October, 2000 to 23rd February, 2003 and indulging in insubordination in declining to move to the appropriate section, the petitioner again went on unauthorized absence without any intimation from 13th November, 2003 till 13th September, 2004. On account of the acts of unauthorized absence and acts of insubordination, the misconduct/misbehavior was imputed against him and Articles of charges were framed and enquiry was initiated. The petitioner contested the charges framed against him contending, inter-alia, that his mother was suffering from Schizophrenia for 33 years and her condition had worsened in September, 2000 and continued deteriorating till her death up to 22nd January, 2003 resulting into petitioner's compulsive absence from duty during the period commencing from 30th October, 2000 to 23rd February, 2003.

(3.) The petitioner contended that his absence was regularized by grant of EOL (PA) vide letter dated 28th October, 2004 and the charge sheet was issued to him on 3rd June, 2005 after regularization of his unauthorized absence as EOL alleging contravention of provisions of Rule 3(1)(ii) & 3(1) (iii) of CCS (Conduct Rules) 1964. After considering the reply of the petitioner and the material on record, the inquiry officer gave the finding of misconduct against the petitioner. Against the enquiry report, the petitioner gave a representation to the Disciplinary Authority. The disciplinary Authority after considering all the facts and circumstances passed the order dated 6th September, 2006 imposing the penalty of reduction of his pay by two stages. Before the Tribunal learned counsel for the petitioner had contended that once the period of absence has been regularized by grant of EOL, no disciplinary proceedings could be held for unauthorized absence and relied on Union of India & Ors. Vs. Rampal (AIR 1996 SC 1500) and another judgment of High Court of Punjab in State of Punjab Vs. Chanan Singh, (1988) 3 All India Service Law Journal 216.In the circumstances, it was contended before the Tribunal that once the period of absence is treated as leave of any kind, the alleged misconduct of absent without permission does not survive. The petition was contested by the respondent contending, inter- alia that the punishment imposed on the petitioner is not only for absence from duty without leave but was something more which was the act of insubordination on the part of the petitioner and imputable to him. In the circumstances, it was contended that the essence of the charges against the petitioner are dereliction of duty, disobedience and insubordination and also relied on the case of Rampal (supra). Relying on Rampal (supra), it was contended that regularization of the period of absence by way of granting EOL only covers the unauthorized absence, however, it does not cover the lapse of not availing the leave in violation of the rules. It was further contended that where period of unauthorized absence is treated as EOL, in exercise of independent and separate power, violation of rules in not availing leave and insubordination, if any, is not regularized. The Tribunal noted that reasons given by the Appellate Authority had approved the same, holding that the manner of absence was taken into consideration by the Inquiry Officer, Disciplinary Authority and the Appellate Authority and merely because later on, unauthorized absence was treated as EOL will not absolve the petitioner completely. The Tribunal also distinguished the case of Chanan Singh where the Court had directed to treat the absence as on leave.