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2011 DIGILAW 381 (JHR)

Akhawri Shankar v. The Union of India

2011-04-28

D.N.UPADHYAY, PRAKASH TATIA

body2011
Prakash Tatia, J. Heard learned counsel appearing for the parties. 2. The petitioner is aggrieved against the order dated 27th June, 2008 passed by the Central Administrative Tribunal, Patna Bench (Circuit sitting at Ranchi) by which the petitioner's O.A. No. 62 of 2006 was dismissed. 3. As per the brief facts of the case, the petitioner was initially appointed to the post of Clerk on 25.07.1983 and then promoted to the post of Auditor on 01.01.1992 and further promoted to the post of Senior Auditor on 09.01.1995. According to the petitioner, his father was ill between 13.10.2000 to 15.12.2000 and being the only son living with him, the petitioner proceeded on leave by submitting an application for grant of leave for 13.10.2000 to 15.12.2000. This application was for grant of extraordinary leave. The petitioner again submitted an application for grant of half-pay leave from 21.12.2000 to 14.01.2001 along with an application for Earned Leave from 13th December, 2000 to 15.12.2000 and 33 days Extraordinary Leave from 15.01.2001 to 17.02.2001 in continuation of his previous applications. Then according to the petitioner on 20.02.2001, he submitted another application for leave for specialized treatment of his father at P.G.I. Lucknow and after returning from Lucknow after about eight and half months, he finally reported on December, 2001. According to the petitioner, his above leave applications were remained pending and had not been rejected. However, a disciplinary proceeding was initiated against the petitioner on 2.05.2002 on the ground of unauthorized leave and the petitioner was not allowed to resume duty. The petitioner then preferred O.A. No. 246 of 2002 for allowing him to resume duty. However, the enquiry against the petitioner continued and according to the petitioner he was not given intimation of date of any enquiry. 4. Be that as it may, ultimately the enquiry report was submitted on 14th February, 2003 and thereafter the petitioner's service was terminated on 7.1.2004. The aforesaid O.A. No. 246 of 2002 was then finally disposed of on 26.5.2004 giving liberty to the petitioner to exhaust the remedy of appeal against the order of dismissal. 4. Be that as it may, ultimately the enquiry report was submitted on 14th February, 2003 and thereafter the petitioner's service was terminated on 7.1.2004. The aforesaid O.A. No. 246 of 2002 was then finally disposed of on 26.5.2004 giving liberty to the petitioner to exhaust the remedy of appeal against the order of dismissal. The petitioner then, without exhausting the remedy of appeal approached this Court by filing writ petition being W.P. (S) No. 912 of 2005 and the said petition was disposed of by this Court on 4.05.2005 permitting the petitioner to prefer appeal within three months and it was observed that now the petitioner will co-operate with the appellate authority. The petitioner then preferred appeal which was dismissed by ex-parte order dated 22.08.2005. Hence this writ petition has been preferred by the writ petitioner. 5. Learned counsel for the petitioner very fairly submitted that the petitioner is now challenging the quantum of punishment in view of the fact that the petitioner is seeking sympathetic relief from the employer through this Court. Learned counsel for the petitioner further submitted that petitioner was not the person who did not apply for the leave. However, leave was not sanctioned but at the same time leave was not refused by the employer. Not only this the petitioner's father was sick and in emergency situation the petitioner had no option but to leave the leave application before the employer and rush to attend his father and in that situation also it was the duty of the employer to enquire whether the ground taken by the petitioner was genuine and valid or not before passing the order of punishment even if it is held that the petitioner misconducted for not submitting the leave application in time. Learned counsel for the petitioner relies upon the judgment reported in 2003 (9) S.C.C 480 {Kailash Nath Gupta Vs. Enquiry Officer (R.K. Rai) Allahabad Bank and Others}. Learned counsel for the petitioner also submitted that although in the Rules of The Central Civil Services (Conduct) Rules, 1964, it is not specifically provided that an employee cannot leave the place of working without obtaining prior sanction of leave and it is also not mentioned as to what are the pre-requisites for leaving the place of employment for an employee, even then in the facts of the case punishment awarded to the petitioner cannot be justified. 6. 6. We have perused the Rules, the impugned order, the materials available on record and the charges levelled against the petitioner. From the facts which comes out from the record, are that the petitioner was served a memo on 29.10.1999 warning him to get the leave sanctioned before proceeding on leave in future failing which disciplinary action may be taken against him. However, the petitioner proceeded on leave from 13.10.2000 by leaving an application for grant of leave. Admittedly, the leave was not sanctioned and the petitioner left the place of working. Thereafter, he sent an application for extension of leave. It is also contended by learned counsel for the petitioner that the employer had not recorded any ground that the reason was false with respect to leave on the ground of illness of his father. But on perusal of the charge, it will reveal that it was not the charge against the petitioner that he had taken a false ground rather charge was that the petitioner remained on leave without prior sanction. Therefore, so far charge against the petitioner is concerned, that was, in fact, an admitted fact and admission of the employee himself fully proved the charge that he remained on leave without obtaining the sanction. If we look into the provisions referred to above in C.C.S Rules 1964, which nowhere provides that the employee can leave the place of working or remain absent from the office without obtaining the leave. From the above provisions it will clearly reveal that it is the duty of the employee to attend the office and if he wants to take leave then it is the duty of the employee to seek leave. Mere submission of leave application and leaving the office is always at the risk of the employee and the employer can take disciplinary action against the employee. In the case in hand, it is clear that petitioner was habitual absentee and he was warned also. 7. So far contention of the learned counsel for the petitioner, that the employer has not recorded its finding that the ground taken by the petitioner of illness of his father was a false ground, is concerned, the burden was upon the employee to prove that on this ground he deserves some lenient view. 7. So far contention of the learned counsel for the petitioner, that the employer has not recorded its finding that the ground taken by the petitioner of illness of his father was a false ground, is concerned, the burden was upon the employee to prove that on this ground he deserves some lenient view. From the facts which is fully taken note of by us, it appears that the petitioner did not co-operate in the enquiry at any point of time and several efforts were made to serve the notice to the petitioner. But he did not co-operate. The petitioner's failing to co-operate in the enquiry proceeding proves that charge against the petitioner was fully established. In case he wanted to take benefit of any sympathy it was his duty to prove some emergency had occurred resulting absence of the petitioner by leaving the office without obtaining the sanction. 8. So far contention of the learned counsel for the petitioner that the postman who endorsed in postal envelop that the petitioner was not available at the time of offering the letter is concerned, the postman should have been examined to prove the same. In the facts of the case, the fact is hardly relevant because of the plain and simple reason that several attempts were made by the authorities to serve the notice but all efforts aborted by the petitioner and then the notice was published in the newspaper also. 9. So far quantum of punishment is concerned, we are of the view that looking to the unfair conduct of the petitioner, which has been taken note of in detail , the petitioner is not entitled to any relief in any manner. The petitioner's contention that he remained absent for such a long period because of illness of his father cannot be accepted because he should have co-operated in the enquiry honestly. It was not the employer's duty to find out whether petitioner's father was sick or not he should have produced the evidence before the authority for service. It is well settled principle that who alleges, is required to prove the same It is the plea taken by the petitioner that his father was ill and it was not the respondent-employer to prove that the petitioner's father was not ill. 10. In view of the above, we do not find any reason to interfere with the impugned order. It is well settled principle that who alleges, is required to prove the same It is the plea taken by the petitioner that his father was ill and it was not the respondent-employer to prove that the petitioner's father was not ill. 10. In view of the above, we do not find any reason to interfere with the impugned order. Hence, this petition is dismissed. No order as to costs.