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2013 Supreme(Gau) 211
IN THE HIGH COURT OF GAUHATI
IQBAL AHMED ANSARI AND P.K. MUSAHARY, JJ.
Arun Kumar Mazumdar – Appellants
Vs.
Union of India and Ors. – Respondent
W.P. (C) No. 4346 of 2008
Decided On: 09.04.2013
For Appellant/Petitioner/Plaintiff:Mr. B. Chakraborty, Mr. T.R. Sarma, Mr. L. Gogoi and Ms. P. Hazarika, Advocates
For Respondents/Defendant: Mr. K.A. Mazumdar, Central Government Standing Counsel
Headnote:
Constitution of India – Article 226 – Respondent Authorities – Illness and Struggling – Statutory Appeal – Petitioners case as pleaded Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter CAT in short) is that he was initially appointed as a Lower Division Clerk with effect Canteen Stores Department under Ministry of Defence and posted at Canteen Stores Department Depot at Dimapur and he was confirmed in said post – While working as such he was suffering from illness and physical ailment of serious nature and underwent treatment at transferred to and posted at Guwahati on medical ground further treatment he proceeded to All India Institute of Medical Sciences which he submitted an application for leave before leaving for Delhi course of his treatment he kept his controlling authorities informed from time to time over phone and messages – Eventually he was attacked by typhoid and proceeded to Christian Medical College at Vellore in Tamil Nadu for better treatment – Held, Petitioner unauthorisedly remained absent for a long period without any acceptable, valid and bona fide reason and having found that petitioner failed to explain his mis-conduct satisfactorily and there being no infirmity in judgment and order of learned CAT, we find no legal ground for interference with impugned judgment and order our considered petition is bereft of any merit and accordingly we uphold impugned order of learned CAT and also impugned order of enquiry authority imposing punishment for removal of petitioner from service and order of appellate authority upholding punishment order condonation of absence by offering an explanation for such unauthorized absence and seek grant of leave for that period – Employer is satisfied that there was sufficient cause or justification for unauthorized absence employer may condone act of indiscipline and sanction leave post facto – If leave is so sanctioned and unauthorized absence is condoned will not be open to employer to thereafter initiate disciplinary proceedings in regard to said mis-conduct unless it had while sanctioning leave reserved the right to take disciplinary action in regard to act of indiscipline – Appeal dismissed.
P.K. Musahary, J.
1. Heard Mr. B. Chakraborty, learned counsel for the petitioner and Mr. K.A. Mazumdar, learned Central Government Standing Counsel for the respondents. This is an application filed under Article 226 of the Constitution of India challenging the judgment and order dated 22.5.2008 passed by the learned Central Administrative Tribunal in Original Application No. 283/2006, whereby and whereunder the learned Tribunal upheld the order dated 20.10.2005 passed by the Respondent No. 3 (Disciplinary Authority) removing the petitioner from service and also the order dated 4.5.2006 passed by the Respondent No. 2 (Appellate Authority) rejecting the petitioner's statutory appeal.
2. The petitioner's case as pleaded in the O.A. before the Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter CAT in short) is that he was initially appointed as a Lower Division Clerk (LDC in short) with effect from 1.7.1994 in the Canteen Stores Department under the Ministry of Defence and posted at Canteen Stores Department (CSD in short) Depot at Dimapur and he was confirmed in the said post w.e.f. 30.6.1996. While working as such he was suffering from illness and physical ailment of serious nature and underwent treatment at Guwahati. He was transferred to and posted at Guwahati on medical ground. For further treatment he proceeded to All India Institute of Medical Sciences, New Delhi (AIIMS in short) on 17.2.1999 for which he submitted an application for leave before leaving for Delhi. In the course of his treatment he kept his controlling authorities informed from time to time over phone and messages. Eventually he was attacked by typhoid from 13.9.2000 and proceeded to Christian Medical College (CMC in short) at Vellore in Tamil Nadu for better treatment. He submitted an application on 3.11.2000 praying for extension of his leave. As he has been suffering from protracted illness and struggling for life, he was running from place to place for better medical treatment and recovery from illness. The respondent authorities sent several letters and telegrams at home address asking the petitioner to report for duties but as he was out of station for his treatment, he did not receive most of the letters and telegrams, except one or two, sent by the department. However, the petitioner from time to time, informed the respondents about his critical condition praying for leave. The respondent No. 4 vide his letter dated 17.6.2003 acknowledged receipt of one of the applications of the petitioner on 31.5.2003 and directed him to report for duty on 01.07.2003. He accordingly joined his duties and had been attending the duties regularly till he was removed from service. After his rejoining he was served with memorandum of charges on 18.8.2003 alleging that he remained unauthorisedly absent from 29.8.2000 to 30.6.2003 for 1037 days. The departmental proceeding commenced with the appointment of an Enquiry Officer and Presenting Officer. The petitioner appeared before the Enquiry Officer on 10.11.2004. He denied all the charges brought against him and submitted all the relevant papers in support of his medical treatment. Hearing took place on 16.2.2005. The Enquiry Officer submitted the enquiry report on 01.04.2005. Copy of the said enquiry report was furnished to the petitioner and on receipt of the same he submitted a reply through proper channel. The Disciplinary Authority, by an order dated 20.10.2005, imposed punishment of removal from service on the petitioner with immediate effect offering an opportunity to submit an appeal as provided under the Central Civil Services (Classification, Control And Appeal) Rules, 1965 (hereinafter referred to as CCS Rules in short). The petitioner preferred the appeal on 01.12.2005 before the Chairman, Board of Administration & General Manager, Canteen Stores Department through proper channel. The said appeal was dismissed by the Appellate Authority, Respondent No. 2 vide order dated 04.05.2006.
