K. VIJAYAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner had entered the service of the second respondent as Refrigerated Truck Cleaner on 2.4.1980. Later, when operation of Refrigerated Trucks was wound up by the second respondent, the petitioner was appointed as Watchman in the year 1988. While continuing as watchman, disciplinary proceeding was initiated against the petitioner for unauthorised absence for the period commencing from 15.11.2001. A departmental enquiry was ordered against the petitioner vide Ext P1 order dated 27.6.2002. After culmination of enquiry, Ext P2 Enquiry Report was filed finding that the charges levelled against the petitioner were proved. The specific charges found to have been proved against the petitioner, in the departmental enquiry, are as follows:-

(2.) Though, copy of the Enquiry Report was furnished to the petitioner, with direction to submit his representation on the findings in the Enquiry Report and accordingly, the petitioner submitted his explanation, there was considerable delay in finalising the disciplinary proceedings. Therefore, the petitioner approached this court by filing W.P(C) No.26417 of 2012. That Writ Petition was disposed under Ext P3 judgment, directing the competent authority to pass appropriate orders in the disciplinary proceedings initiated against the petitioner, within three months from the date of receipt of a copy of the judgment. Thereupon, Ext P4 order was issued by the 3rd respondent on 12.4.2013, awarding the punishment of compulsory retirement under Rule 11 (vii) of the CCS(CCA)Rules. Aggrieved by imposition of the punishment, the petitioner preferred Ext P5 appeal and by Ext P6 order dated 25.4.2013, the appellate authority affirmed the order of the disciplinary authority and consequently dismissed the appeal. Being aggrieved by Ext P6 order the petitioner again approached this court by filing WP(C) No.15726 of 2013. The prayer in that Writ Petition was to quash the order of the disciplinary and appellate authorities (Exts P4 and P6 herein). By Ext P7 judgment this court quashed the order of the appellate authority and directed the appellate authority to reconsider the appeal. Accordingly, the appeal was considered afresh, providing an opportunity of hearing to the petitioner, and Ext P8 order was issued finding that there was no ground for interfering with the order of punishment awarded by the disciplinary authority. In this Writ Petition the petitioner challenges Exts P4 and P8 orders, primarily on the ground of inordinate delay in concluding the disciplinary proceedings and also on the ground that the third respondent, Chairman, MPEDA, who issued Ext P4 order, had no authority to do so.

(3.) The learned counsel for the petitioner submits that the disciplinary proceedings having been initiated on 27.6.2002, the imposition of punishment after 11 years, by Ext P4 order dated 12.4.2013, is liable to be quashed on the sole ground of inordinate delay in concluding the proceedings. The learned Standing Counsel for respondents 2 and 3 stoutly opposed the averment regarding delay in completing the proceedings and contended that noncooperation of the charged officer was the principal reason for the delay in completing the departmental enquiry. It is submitted that the petitioner had deliberately remained absent from 15.11.2001 to 23.4.2004 with the sole objective of hampering the enquiry proceedings. It is further submitted that while passing Ext P4 order, the disciplinary authority had given due consideration to the delay in concluding the disciplinary proceedings and it was for that reason alone that the petitioner was imposed with a lesser punishment of compulsory retirement, even though the proven charges warranted the punishment of dismissal from service. It is contended by the learned counsel that the petitioner was a habitual absentee, which would be evident from the fact that the petitioner had been proceeded against and imposed with punishment for unauthorised absence on earlier occasions also. In support of this contention, Exts R2(a) to R2(c) are relied on. It is submitted that even after completion of the disciplinary proceedings, the petitioner was absent on most of the days during the period from 2004 to 2012. It is submitted that the petitioner was absent on 246 days in 2004, 131 days in 2005, 259 days in 2006, 279 days in 2007, 36 days in 2008, 42 days in 2009, 39 days in 2010, 166 days in 2011 and 53 days in 2012. It is therefore contended that a person who had deliberately absented from duty cannot raise a complaint that the delay in concluding the disciplinary proceedings had adversely affected him and had also vitiated the disciplinary proceedings.