Full Judgment
Shailendra Pandey, Member (A):
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 Tribunal’s 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 Hon’ble Apex Court in State of Madhya Pradesh v. Bani Singh and 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.
4. The respondents have filed their reply and have stated that the applicant’s application dated 8.06.2009, for the Postman examination, was recommended by the Inspector of Post Offices, Jhajjar on provisional basis and sent to SSPO’s Office, Rothak and he was allowed to take the examination ‘Provisionally’. He was declared successful in the said Postman examination held on 26.07.2009 vide Memo dated 10.12.2009, but as a decision with reference to his period of absence from duty from 01.05.2006 to 25.11.2007 was pending, no appointment orders were issued in his case.
It is also admitted by the respondents that a Chargesheet under Rule 16 of CCS (CCA) Rules, 1965 was issued to Sh. Devender Kumar the then Inspector of Post Offices, Jhajjar vide memo. dated 21.01.2011, for his failure to take disciplinary action against the applicant with regard to his unauthorized absence of 574 days, and that he was punished for this vide Memorandum dated 31.05.2011.
4.1. With regard to the submission of the applicant in ground 3(c) above, the respondents have stated that the Medical Certificates of illness of the applicant of 23 spells were received together `in one bunch’ on 29.06.2009 when the explanation of the applicant was called for by the SDI (P) Jhajjar. Moreover, although the applicant had deposed in his statement dated 09.04.2010 that during the period 1.5.2006 to 25.11.2007 he was ill and under treatment of Dr. Anil Sharma, Kapil Clinic, VPO Dadri and had submitted all the MC’s by ordinary post, there was no record of posting of these MCs. Also, the MCs submitted by the applicant are not the original MCs as claimed by the applicant.
4.2. It is submitted that all aspects and facts and circumstance of the case of the applicant were considered by the Chief Postmaster General, Haryana Circle, Ambala before he rejected the request to regularize the said period of absence, vide his letter dated 11.03.2011. Further, the decision to issue the chargesheet to him was taken by the respondents after completing all necessary formalities as per rules and that the action of the respondents is just and fair, and in accordance with rules.
5. We have heard the learned counsel for both the parties and have been through the pleadings on record.
6. In the case of Y.P.Choudhary’s (supra) a Coordinate Bench of this Tribunal had occasion to deal with the question of delay in issuing of chargesheet and had summarized the issues to be considered in such cases. We extract below the relevant portions of the observations:
“6. The issue regarding delay in issuing the Memorandum of Charge after substantial delay has been considered by the Honourable Supreme Court in State of Madhya Pradesh Vs. Bani Singh (supra), Secretary to Government, Prohibition and Excise Department Vs. L.Srinivasan, (1996) 3 SCC 157; Food Corporation of India Vs. V.P. Bhatia, JT 1998 (8) SC 16; State of andhra Pradesh Vs. N.Radhakrishnan, JT 1998 (3) SC 123 and P.V. Mahadevan Vs. M.D., T.N. Housing Board (supra). This Tribunal had considered these judgments of the Honourable Supreme Court in detail in OAs No.1756/2008 and 1757/2008, Shri Rahul Gupta Vs. Union of India and others, decided on 3.02.2009, OA No.1690/2007, Shri J.P. Singh Vs. Union of India and others, decided on 19.11.2008 and OA No.689/2005, Irfan Ahmad, Jt. Commissioner of Central Excise Vs. Union of India and Others, decided by the Mumbai Bench of the Tribunal on 26.07.2006.
7. The issues to be considered in cases where there is extreme delay in issuing Memorandum of Charge, can be summarized, on the basis of aforesaid judicial precedents thus:
the competent authority should be able to give an explanation for the inordinate delay in issuing the Memorandum of Charge;
the charges should be of such serious nature, the investigation of which would take a long time and would have to be pursued secretly;
the nature of charges would be such as to take a long time to detect such as embezzlement and fabrication of false records;
if the alleged misconduct is grave and a large number of documents and statement of witnesses had to be looked into, delay can be considered to be valid;
the Court has to consider the nature of charge, its complexity and on what account the delay has occurred;
how long a delay is too long always depends on the facts of the given case;
if the delay is likely to cause prejudice to the Charged Officer in defending himself, the enquiry has to be interdicted; and
the Court should weigh the factors appearing for and against the disciplinary proceedings and take a decision on the totality of circumstances. In other words, the Court has to indulge in the process of balancing.”
7. Let us now examine the present OA in the above backdrop.
7.1. The applicant in this OA is being proceeded against with regard to his unauthorized absence for events that occurred in the year 2006-2007 and the chargesheet in the matter has decidedly been issued after considerable delay. The respondents also in their counter reply to para 4.13 and para 5.5 have not given any explanation for the delay. But for denying the submissions of the applicant in paras 4.13 and 5.5, they have only stated that the chargesheet was issued after completing all the necessary formalities as per rules by the respondents and as such the action of the respondents is just and fair.
7.2. It is noticed that on 17.11.2007 an order was issued by the respondents asking the applicant, who had been absenting from duties from May, 2006, to report for joining his duty otherwise disciplinary action would be initiated against him. Immediately, thereafter, the applicant joined his duties. It is also noticed that though Memorandum of Chargesheet dated 24.03.2011 has been issued in the year 2011, this was preceded by a Memorandum dated 23.06.2009 which was also issued, after a delay of one and half years from the incident (unauthorized absence), in which the applicant was directed to send his explanation relating to the unauthorized absence in question. The applicant submitted his reply to this Memorandum on 29.06.2009 (Page 25 of the paper book). According to the respondents, the Medical Certificates of illness of the applicant of 23 spells were received together on 29.06.2009 when the explanation of the applicant as called for by the SDI ((P) Jhajjar, and moreover the applicant has deposed in his statement dated 09.04.2010 that during the period 1.5.2006 to 25.11.2007 he was ill and took treatment from Dr. Anil Sharma, Kapil Clinic, VPO Dadri and submitted all the MC’s by ordinary post but there is no record of posting of these MCs. However, there is no record of any action taken thereafter, and the formal impugned charge-sheet has been issued on 24.03.2011, i.e., after passing of the Postman examination by the applicant and also after a further delay of one year nine months.
7.3. It is also noticed from a perusal of the order dated 31.05.2011 (Annexure R5) that the absence of Shri K. D. Singh (the applicant) was in the knowledge of Shri Devender Kumar, the then officiating SDI(P), Jhajjar and Shri Devender Kumar was required to initiate disciplinary action against the applicant for his unauthorized absence but had failed to do so and instead of taking disciplinary action allowed the applicant to join duty by calling him through a written letter dated 17.11.2007.
8. From the above, it appears that delay in taking action in the matter was due to the lapse on the part of Sh. Devender Kumar in initiating action against the applicant for his unauthorized absence. However, whether such inaction would absolve the applicant for the lapse (long unauthorized absence), if any, on his part, is a matter that will have to be decided by the competent authority based on the facts and circumstances to be presented to them. Taking note of the fact that the absence from duty is a long period of 574 days, we do not think that it would be desirable for the Tribunal to intervene in the present case at an interlocutory stage, as the applicant will still have the chance, at the time of filing reply to the Memorandum dated 24.03.2011 before the concerned authority, to place before the respondents how the delay in the matter on their part has caused prejudice him/to his defence. Reference may also be made, in this connection, to the Judgment of the Hon’ble Apex Court in Union of India v. Kunnisetty Satyanarayana, [2006 (12) Scale page 262 paras 13 and 14].
Whatever the applicant has stated in his grounds in this OA, he may state in reply to the chargehseet and during further proceedings, if any. If during the proceedings, the applicant feels that due to passage of time, certain documents that he may have had access to earlier, cannot now be readily produced, it would be open for him to put this to the authorities concerned, who would then have to deal with the same appropriately before taking a final decision in the matter.
9. The decision in the case of Y.P.Choudhary, cited by the applicant, in support of his relief, would not help him as in that case the Tribunal was of the view that it was a matter pertaining to certain procedural lapses in purchase of some items of clothing. However, in the present case, the charge is more serious, namely, unauthorized absence for a long period of 574 days.
10. For the reasons discussed above, while declining to interfere in the impugned chargesheet, we dispose of this OA, without expressing any opinion on the merits of his submission that the absence of 574 days was for justifiable reasons and, therefore, cannot be taken to be willful unauthorized absence, by directing the respondents to take further action in the matter and conclude the case finally with expedition preferably within a period of three months. Also while doing so they shall take into account the aspect of delay in issue of the chargesheet to the applicant and the extent to which this may prejudice his defence.
11. The OA stands disposed of in terms of aforesaid observations. No costs.