KAPIL DEV SHARMA Vs. UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF COMMUNICATION DEPTT. OF POSTS DAK BHAWAN PARLIAMENT STREET NEW DELHI

JUDGEMENT

(1.) In this OA, the applicant has challenged the Office Memorandum (charge -sheet) dated 24.03.2011, proposing to hold an inquiry against him under Rule 10 of GDS (Conduct and Employment) Rules, 2001.

(2.) The brief facts of the case are that the applicant was appointed as a Gram Dak Sewak (GDS) Mail Carrier in Khungai B.O. w.e.f. 17.05.2000. He had applied for the examination for promotion to the post of Postman on 23.06.2009 through the Inspector of Post Offices, Jhajjar, who forwarded his application with the remarks 'Provisionally recommended and stating that he was absent from duty from 01.05.2006 to 25.11.2007. The applicant was declared successful in the said Postman examination held on 26.07.2009, vide Sr. Supdt. of Post Offices, Rohtak Memo dated 10.12.2009. Although, other persons who had participated in the said examination and had been declared successful have been selected and issued appointment orders for the said post, orders in respect of the applicant have not been issued for the reason that a decision with regard to his period of absence from duty from 01.05.2006 to 25.11.2007 was pending. It is stated that earlier on 17.11.2007, an order had been issued by the respondents asking the applicant, who had been absenting from duties from May, 2006, to report for joining his duty failing which disciplinary action would be initiated against him. In response thereto, the applicant had joined his duties on 26.11.2007. As no promotion order had been issued his case, the applicant made representations (till 10.03.2011) for promotion to the post of Postman, and thereafter he filed OA No.1694/2011 praying for a direction to the respondents to consider and finalize his case for promotion to the cadre of Postman against the Postman Examination held on 26.07.2009 for the vacancy years 2006, 2007 and 2008. This OA was allowed by the Tribunal vide its order dated 30.09.2011 directing the respondents as under: 8. In the instant case since no charge sheet was pending against the applicant even on the date when persons were promoted ignoring the claim of the applicant even though he was successful in the examination, we are satisfied he could not have been denied his due promotion. 9. In view of above, this OA is allowed. Respondents are directed to promote the applicant to the post of Postman with effect from 17.12.2009. However, applicant would not be entitled to any arrears because he has approached the court only on 31.3.2011, i.e., after a delay of over 2 years. Of course, his pay would be fixed notionally and seniority would also be counted from the same date as Postman. 10. With the above direction, this OA stands disposed of. No order as to costs. It is stated that during the pendency of the OA No.1694/2011, the respondents had declined the proposal for regularization of period of absence from duty w.e.f. 1.05.2006 to 25.11.2007 of the applicant with a further direction to take action against the applicant, vide their communication dated 11.03.2011. Accordingly, on 08.04.2011, Memorandum dated 24.03.2011 (Annexure R6) was issued to the applicant on the allegation that while working as GDS MC he remained unauthorized absent from duty from 01.05.2006 to 25.11.2007, i.e., for 574 days at a stretch. The applicant, without filing any reply to the said Memorandum, has approached this Tribunal through the present OA praying for the following relief(s): to quash and setting aside the impugned charge sheet served on the applicant under the covering memo dated 24.03.2011 served on the applicant on 08.04.2011 with all other consequential benefits after declaring the same as belated in terms of the law laid down by this Tribunal in case of Y.P.Chaudhary v. Govt. of NCT Delhi and Ors. i.e. OA No.1233/2008 decided on 17.03.09 followed by this Tribunals case in Sh. Ram v. Union of India and Anr., i.e., OA 2261/2009, decided on 30.11.2010.

(3.) The above relief is sought mainly on the following grounds: a) that the OM (chargesheet) dated 24.03.2011 has been issued after an inordinate delay of about 4 years and 8 months and there is no misappropriation or misrepresentation on the part of the applicant and therefore, the impugned chargesheet has been issued without explaining the delay in issue and is, therefore, liable to be quashed and set aside. In this connection, reliance is placed on the Judgments of the Honble Apex Court in State of Madhya Pradesh v. Bani Singh & Anr., 1990 Supp. SCC 738 and P.V.Mahdevan v M.D.Tamil Nadu Housing Board, 2006 (1) SLJ 67=(2005) 6 SCC 636. b) that his case is squarely covered by the Judgment of this Tribunal in Y.P.Chaudhary v. Govt. of NCT and Others, OA No.1233/2008, decided on 17.03.2009 as well as in the case of Sh. Ram v. Union of India and Anr., OA No.2261/2009, decided on 30.11.2010. c) that there is no misconduct on the part of the applicant as, although he was absent for the period 01.05.2006 to 25.11.2007, this was because of his 'illness during which he remained under the treatment of medical authorities and for which he had been informing the respondents time and again, and that, for the first time, when registered letter dated 17.11.2007 was sent to the applicant to resume duty, he reported for duty along with medical/fitness certificates to cover the period during which he was under treatment and that it is thus not a case of 'unauthorized absence. d) that although his absence from duty was very much in the knowledge of the authorities, which is evident from the remarks made by the recommending officer on the application for the post of Postman, allowing the respondents to proceed with the departmental proceedings at this distant time would be prejudicial to the applicant. 3.1. The learned counsel for the applicant has argued that keeping the applicant under the charge of unauthorized absence would cause undue mental agony and stress which would be more than the punishment that may be imposed in such cases. Further, that delay in the case is attributable to the respondents, as is evident from the punishment order issued against Sh. Devender Kumar, the then Inspector Posts, Jhajjar vide respondents Memorandum dated 31.05.2011 (Annexure R5). 3.2. In view of the above, it is submitted by the learned counsel for the applicant that the departmental proceedings are illegal, arbitrary and malafide and should be put an end to.