GOVERNMENT OF INDIA Vs. M JEYAPAL

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.