Judgment:
Sudhir Kumar, Member (A):
1. The applicant of this case is before us aggrieved by the orders dated 16.11.2009 (Annexure A-1) by which he has been removed from service of the Delhi Transport Corporation (DTC, in short) under Clause-15 (2) (VI) of Delhi Road Transport Authority (DRTA, in short) (Condition of appointment and Service) Regulations, 1952 (DRTA Regulations 1952, in short), and the order dated 23.08.2010, by which the appeal filed by him on 11.03.2011 (Annexure A-3) addressed to Chairman-cum-Managing Director (CMD, in short) of DTC for reinstatement in service has also been rejected.
2. The applicant had joined DTC as a driver in 1982. On 08.03.2007, the applicant was implicated in a criminal case under Section 302 of IPC, and Arms Act, in Police Station Kharkhoda, Sonepat, in FIR No.46/2007. He remained absconding thereafter, and had later submitted that he had to go into hiding because the rival party wanted to eliminate him if he was seen at the duty or at his residence. He has taken a plea that through his letter dated 30.09.2008 (Annexure A-5) written by him when he returned 1= years after the date of the incident, he had informed the Depot Manager of Rohini Depot-II, Delhi-89, regarding the circumstances of his absence, and his life being in danger, and praying for sanction of leave. In parallel, information had been received by the Depot Manager of Rohini Depot-II from Police Station Kharkhoda, District Sonepat (Haryana) on 20.03.2008 that the case vide FIR No.46/2007 under Sections 148/149/307/302/120B of IPC with 25/27, 54/59 Arm Act had been registered against the applicant.
3. Through letter dated 19.01.2009 Depot Manager wrote to the SHO of the Police Station asking for a copy of the FIR and any information regarding the arrest of the applicant. The reply from the Police Station dated 22.01.2009 (Annexure A-7) stated that the police had first been searching for the applicant because of his involvement in the murder case, but, after investigation of the case, after finding him to be not guilty, the police had filed an application in the Court for discharging the applicant from the list of the accused persons, and had stated that they do not now require the presence of the applicant as an accused. This Annexure A-7 was written on a blank paper, and was not in any particular format, or with a proper forwarding letter number having been affixed by the Police Station of Kharkhoda, and its authenticity, if at all, can only be taken at its face value, with a pinch of salt.
4. The applicant thereafter submitted a petition dated 04.03.2009 to the Depot Manager (Annexure A-8) stating that while he was in hiding after filing of the FIR, he had kept on pleading with the senior officers of the police regarding his innocence, and when in the end he had been found to be innocent, he had prayed with the respondents for taking him back on duty. The Depot Manager again wrote to the SHO through Annexure A-9 dated 27.03.2009, pointing out that while on the one hand the police had earlier declared the applicant to be an absconder, and now that the concerned employee had filed certain documents, a confirmation was required as to whether through any order of the Court, or any report of the Inquiry Officer, he has been let out of the case, or not. Another reminder to that effect was issued on 17.06.2009 also. When the respondents did not receive any reply to their letters dated 27.03.2009 and 17.06.2009, they issued a Show Cause Notice dated 07.07.2009 to the applicant as to why he should not be removed from his service. The applicant filed his reply dated 09.11.2009 through Annexure A-11, submitting that he had replied to the charge sheet issued to him on 07.04.2008 regarding his unauthorized absence, without prior intimation or permission, for 332 days through his reply dated 30.09.2008, and that the domestic enquiry was held against him on this very allegation of his unauthorized absence from 01.01.2007 to 31.12.2007. He stated that initially during January and February 2007, he had been absent from duty on account of illness of his wife, and that the reason for his absence for the rest of the remaining period in 2007 had already been explained by him in reply to the Show Cause Notice. His explanation for the period of his unauthorized absence from 09.03.2007 to 31.12.2007 was on the basis of his having been falsely implicated in the above criminal case. He had, therefore, pleaded that he has not been absent from duty either intentionally or deliberately, but was absent only due to the circumstances beyond his control, and he had prayed that the Memorandum may be withdrawn, and that he should be exonerated from the charges made out against him. However, the Depot Manager was not convinced, and passed the impugned order dated 16.11.2009, removing the applicant from the services of the Corporation from 17.11.2009, as already mentioned above.
5. The applicant filed an appeal against this order before the Regional Manager (North) through Annexure A-12 dated 20.11.2009, and also addressed a letter dated 11.01.2011 (Annexure A-13) to the CMD of DTC with the same prayer, praying to be exonerated, and being taken back on duty.
6. The applicant has assailed the actions of the respondents stating that the Enquiry officer has not taken into account the fact on record that he was on duty as on the date 08.03.2007 when he was falsely implicated in the criminal case, and that thereafter it was not possible for him to perform his duty as Driver, since the opposite party wanted to eliminate him. He had further reiterated that in January and February 2007, he was absent only on the ground of illness of his wife, and thereafter he was absent as he apprehended danger to his life. He had further submitted that police had wrongly declared him an absconder, though no competent Court of Law had declared him to be a proclaimed offender, and that in spite of the request in respect of his exoneration by the police having already been filed before the Criminal Court, respondents have taken action against him only on the ground of his long absence from his duty, which was neither intentional, nor deliberate, but was only due to compelling circumstances, about which he had already explained to his superiors. He had prayed that the respondents have not taken into account 27 years of his past good service, and have imposed the excessively harsh punishment of dismissal from service upon him. He had further submitted that only the General Manager was authorized to take action against him, and not the Depot Manager, and that no warning was given to him as an employee to improve his behaviour.
7. Respondents filed their counter reply on 18.09.2012 denying any wrong doing on their part. The respondents pointed out that it was not the first time the applicant had been involved in a criminal case. He was first imprisoned in November, 2005, but without informing the superior authorities, he had then submitted a false medical certificate and leave application in the office for the period of his absence from 29.11.2005 to 19.12.2005. They had pointed out that he was once again on unauthorized leave for most of the period from 01.01.2007 to 31.12.2007, and he had never informed that in between he had been involved in a criminal case on 09.03.2007. They submitted that charge-sheet dated 07.04.2008 was issued to him in a routine manner, without knowing about the pendency of the criminal case against him, due to his habitual absence, his having absented himself nearly continuously for one year from 01.01.2007 to 31.12.2007, and also thereafter. They submitted that even the reply to the charge sheet dated 07.04.2008 was submitted by him only on 30.09.2008, after a delay of nearly six months.
8. It was submitted by the respondents that when the enquiry was initiated against the applicant, he first stated that he was absent from duty due to illness of his wife, but the leave applications submitted in the office were about his own illness for 21 days. In the whole year of 2007, out of 332 working days on which he was on unauthorized leave, his application covered only 21 days, and for the remaining 311 days, the applicant had not bothered to give any plausible explanation. Even after receiving the charge sheet, the applicant had further continued to be on unauthorized leave from 01.01.2008 up to 30.06.2009 also, because of which the respondents submitted that they had no option but to accept the findings of the enquiry report dated 27.01.2009, and the findings of the Disciplinary Authority dated 06.07.2009, and they had, therefore, been left with no option but to remove him from the services of the Corporation through the impugned order dated 16.11.2009.
9. The respondents had submitted a copy of the record on absence of the applicant from 1982 to 2005 also through Annexure R-2, and a copy of the past disciplinary proceedings record of the applicant through Annexure R-2 (colly). Through Annexure R-1 they had submitted copies of the findings of the enquiry report in the enquiry proceedings conducted against the applicant by Smt. Archana Punnu, Enquiry Officer (North), which report had found him guilty of unauthorized absence. They had also submitted copies of the reports regarding his poor past performance through Annexure R-3 (colly). The respondents had, thereafter, submitted that the Honble Apex Court has in the case of DTC vs. Sardar Singh 2004 (7) SCC 574 held that when an employee himself absents from duty without sanctioned leave for very long period, it prima-facie shows lack of interest in work, and the authority can then, on the basis of the record, come to a conclusion about the employee being habitually negligent in his duties, and having exhibited the lack of interest in the employers work. The Honble Apex Court had gone on to hold that when the person/ workman is absent from duty for a very long period, and is a habitual absentee, he is not entitled to be retained in the services of the Corporation-Organization. They had further cited Para-8 of the Honble Apex Court judgment in North Eastern Karnataka Road Transport Corporation vs. Ashappa (2006) 5 SCC 137 in support of the very same contention, where the Honble Apex Court had held that unauthorized absence on several occasions amounts to a misconduct, which cannot be treated lightly.
10. The respondents have further cited the case in Director General RPF and Ors. vs. Ch. Sai Babu (2003) 4 SCC 331 in which the Honble Apex Court had held in a similar manner that discipline required to be maintained in the department/establishment where the person concerned works. They had further cited the case of State of Rajasthan and Another vs. Mohd. Ayub Naz (2006) 1 SCC 589 to submit that when an employee had been absent for a period of about three years, the punishment of removal from service imposed upon him is absolutely correct, and was not disproportionate.
11. During arguments the learned counsel for the respondents also relied upon the Honble Apex Court judgment in the case of The Divisional Controller, KSRTC vs. M.G. Vittal Rao (2012) 1 SCC 442. In the result, the respondents had stoutly defended having taken the action against the applicant. They had further pointed out that even in the past 27 ACRs of the applicant, 16 ACRs contained adverse entries given by different officers, and the applicants past record showed his one time punishment of Censure and one time punishment of stoppage of two increments without cumulative effect.
12. The respondents further pointed out that during the period of his absence, letters had been sent by the respondents, asking him to report for duty, and in case of illness he was directed to report to the DTC Medical Board for medical check up, which the applicant had failed to do. Thereafter the respondents had even hand delivered a notice at the residence of the applicant, which was received by his father, and then when the father of the applicant informed about his involvement in a criminal case, the respondents had started to enquire from the police authorities regarding the criminal case. They had submitted that in spite of such overwhelming evidence, they had gone through the motions of issuing him a charge sheet, and had given him an opportunity of hearing, by holding a proper disciplinary enquiry against him, before removing him from service. They had, therefore, submitted that there is no merit in the OA, and the OA is liable to be dismissed.
13. The applicant filed a rejoinder on 12.12.2012, more or less reiterating his contentions in the OA, and denying that he had ever given any contradictory statements before the respondent-authorities. He had further submitted that the Apex Court judgments cited by the respondents in their counter reply related to the workmen who were willfully absent, but that his case was different inasmuch as he had to remain absent due to compelling circumstances for saving his life from the rival party in the false criminal case, which had been filed against him, and, therefore, he had denied the applicability of the cited case laws to his case.
14. The matter was heard in great detail, and we have given our anxious consideration to the facts of this case. There is no denying the fact that for about 1 years, the applicant was absent from duty without any intimation whatsoever to the respondent-authorities. He had even been declared to be an absconder offender by the police at one stage, but even while he was hiding, he could have informed to his superior authorities by a latter about the reasons for his absence, which he had not done. We find that in the past also the applicant had been arrested, and was in Jail, and had then filed a false sickness certificate for the period from 29.11.2005 to 19.12.2005. The applicant, therefore, appears to be an incorrigible person, who had refused to mend his ways, because of which the respondent-authorities had to take the action which they have taken.
15. Even though the applicant had submitted that he was not willfully absent, but was absent due to compelling circumstances, no such compelling circumstances could have prevented him from informing his superior authorities at least by post regarding reasons of his absence, and applying for leave as may have been due. Therefore, we are of the view that the observations of the Honble Apex Court in DTC Vs. Sardar Singh (supra), in North Eastern Karnataka Road Transport Corporation vs. Ashappa (supra), in Director General RPF and Ors. vs. Ch. Sai Babu, in State of Rajasthan and Another vs. Mohd. Ayub Naz, and in The Divisional Controller, KSRTC vs. M.G. Vittal Rao (supra) are fully applicable to the facts of the present case. Therefore, we find no merit in the OA, and the OA is, therefore, dismissed. But there shall be no order as to costs.