SIYA RAM SHARMA Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition has been filed by Petitioner-Siya Ram Sharma assailing the order of the Central Administrative Tribunal dated 14/5/2002. The Tribunal dismissed the original application filed by the Petitioner wherein, writ Petitioner challenged the order of his removal dated 31/1/1995 and the order dismissing his appeal dated 5/6/1996.

(2.) Shri Karanpal Singh, learned Counsel for the Petitioner has argued that Petitioner had proceeded on sanctioned leave for the period from 10/9/1992 to 12/12/1992. He thereafter applied for extension of leave for another three months w.e.f. 13/12/1992 to 12/3/1993 on extraordinary reason of death of his two brothers in quick succession. Petitioner then fell sick and could not timely attend the duties. He finally reported duty on 25/5/1993. The competent authority did not convey to the Petitioner rejection of his leave applications, which he submitted applying for extension of leave. Learned Counsel submitted that the disciplinary authority has mechanically held the charge of willful absence proved against the Petitioner whereas absence for the cited reasons like death of two brothers of the Petitioner, one after another in quick succession, followed by reasons of his illness could not be said to be willful in nature. Rule 7 of the Department of Posts Gramin Dak Sevak (Conduct and Employment) Rules, 2001 (shall hereinafter be referred as "Rules of 2001") has not been correctly analyzed and interpreted by the disciplinary authority. In any matter of willful absence, removal of an employee like the Petitioner, who was working on the post of Extra Departmental Postal Agent for last more than a decade, could not be said to be automatic. Learned Counsel submitted that even according to Rule 7 of the Rules of 2001, for the purpose of computing the maximum permissible period of absence, initial period of three months i.e. 10/9/1992 to 12/12/1992 for which leave was granted to the Petitioner was liable to be excluded and if that is done, absence of subsequent period from 13/12/1992 till 25/5/1993 would come to only 164 days. Learned Counsel argued that even otherwise, removal should be made only if the government has applied its mind to the facts of a given case and taken a decision that in view of the exceptional circumstances, period of absence should not be condoned by grant of leave. In this connection, learned Counsel cited the letter dated 8/5/1996 issued by the Director General (Post) New Delhi whereby, power to condone breaks in service caused due to leave in excess of 180 days by the ED As was delegated to the Head of Circles. Learned Counsel cited the judgment of this Court in Dr. Mal Chand Poonia v. The State of Rajasthan and Ors. (SBCWP No. 1829/1989) decided on 31/10/1990 to argue that for absence of short period, penalty of removal should not be awarded and that such penalty should be held to be disproportionate to the gravity of the charge. In this connection, learned Counsel also relied on the judgment of Supreme Court in State of Rajasthan and Ors. (Vs. Sujata Malhotra in Civil Appeal No. 1782 of 2002 arising out of Special Leave Petition (C) No. 21395 of 2001 dated 11/3/2002.

(3.) Shri Karanpal Singh, learned Counsel for the Petitioner also referred to the order of the appellate authority dated 5/6/1996 and argued that appellate authority has admitted the fact that rejection of the application of the Petitioner for extension of leave for the period from 12/12/1992 to 12/3/1993 was not conveyed to the Petitioner and thereafter again rejection of subsequent application for grant of leave for the period from 13/3/1993 to 25/5/1993 accompanied by two medical certificates was also not conveyed to the Petitioner. Learned Counsel submitted that the appellate authority inspite of having held so, was wholly unjustified in not quashing and setting aside the order of his removal. It is therefore prayed that writ petition be allowed and the impugned judgment of the learned Tribunal dated 14/5/2002 dismissing original application be set-aside, order of his removal dated 31/1/1995 and the order dated 5/6/1996 whereby his appeal has been dismissed be quashed and set-aside and the Respondents may be directed to reinstate the Petitioner in service with all consequential benefits.