Arun Kumar Sharma Vs. Union of India and anr

Arun Kumar Sharma vs Union of India and anr

Type Court Judgment Court Delhi Decided Jan 09, 2013

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Citation: sooperkanoon.com/956672
Court: Delhi High Court
Judge: Pradeep Nandrajog
Decided On: Jan 09, 2013
Subject: Education

Case Summary

AI-generated summary - not the official court judgment text.

Education

Key legal issue: Education

Parties & Advocates

Appellant / Petitioner

Arun Kumar Sharma

Respondent

Union of India and anr

Excerpt

.....or defend himself at the inquiry. it is unfortunate that the near and dear ones of the petitioner or his friends did not guide him to seek a discharge from service due to mental disability, which would have to be treated as a disability justifying petitioners services being dispensed with. had he done so, or had the head of the department directed the petitioner to be brought before a medical review board, the department would have had a disability assessed to discharge petitioner from service and give him such benefits as would be due.8. now, the penalty levied upon the petitioner is under the cca (ccs) rules 1965 and as per rule 11, of the many major penalties, vide clause-vii the penalty of compulsory retirement is listed.9. rule 40 of ccs (pension) rules reads as under:40. compulsory retirement pension (1) a government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. (2) whenever in the case of a government servant the president passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the union public service commission shall be consulted before such order is passed. explanation in this sub-rule, the expression pension includes gratuity. (3) a pension granted or awarded under sub-rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of rupees three thousand and seventy five per mensem.10. since pensionable service is 20 years, which petitioner would be deemed to have rendered; having joined service in july 1987 and being dismissed from service on august 24, 2000, but for the subsequent order dated october 19, 2012 which requires 1456 days tabulated in para 3.....

Full Judgment

$~9 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : January 09, 2013 + W.P.(C) 4400/2012 ARUN KUMAR SHARMA ..... Petitioner Represented by: Mr.Vipin Kumar and Mr.Jitender Kumar, Advocates. versus UNION OF INDIA AND ANR ..... Respondents Represented by: Mr.S.K.Dubey, Ms.Zeenat Masoodi, Mr.Malay Dwivedi and Ms.Bhagyshree Pati, Advocates. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE VEENA BIRBAL PRADEEP NANDRAJOG, J.

(Oral) WP(C) No.4400/2012 1. Charges levied, as per the charge memorandum dated September 16, 2009 against the petitioner read as under:Article I: That the said Shri Arun Kumar Sharma, Assistant, while working in RM Section of the Ministry of External Affairs, was on unauthorized absence from duty w.e.f. 12.07.2005 to 25.07.2005. Article II: That the said Shri Arun Kumar Sharma, Assistant, was directed to report for duty at PAI division of the Ministry of External Affairs, vide order not Q/PC/662/2004 dated 28.07.2005. However, Shri Sharma did not report for duty at the PAI Division of the Ministry and was on unauthorized absence from duty from 28.07.2005 to 06.10.2005. Article III: That the said Shri Arun Kumar Sharma, Assistant, was directed to report for duty at the SAARC Division of the Ministry of External Affairs vide office order not Q/PC/662/2004 dated 07.10.2005. However, Shri Sharma did not report for duty at the SAARC Division of the Ministry and was on unauthorized absence from duty from 07.10.2005 to 01.05.2006. Article IV: That the said Shri Arun Kumar Sharma, Assistant, while working in SE-SM Section of the Ministry of External Affairs, was on unauthorized absence from duty on 05.05.2006 and again from 09.05.2006 to 19.05.2006. Article V: That the said Shri Arun Kumar Sharma, is on unauthorized absence from duty since 20.05.2006.

2. In spite of being served with the charge-sheet the petitioner never appeared and suffered an ex-parte report being submitted against him.

3. We need not discuss the report holding that the charges were proved for the reason learned counsel for the petitioner concedes that the evidence, which was nothing else other than the leave account of the petitioner would evidence that between July 08, 2005 till January 25, 2010 the petitioner was absent for 1456 days as under:S.No. 1.

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19. WP(C) 4400/2012 Period of unauthorized absence 08.07.2005 21.07.2005 28.07.2005 06.10.2005 08.10.2005 16.10.2005 19.10.2005 05.05.2006 09.05.2006 31.05.2006 02.06.2006 27.02.2007 07.03.2007 07.05.2007 09.05.2007 13.01.2008 23.01.2008 28.01.2008 29.01.2008 01.02.2008 07.02.2008 11.02.2008 05.08.2008 16.08.2008 09.09.2008 17.09.2008 18.09.2008 20.09.2008 23.09.2008 25.09.2008 28.09.2008 20.10.2008 21.10.2008 24.10.2008 28.10.2008 04.11.2008 06.11.2008 Number of day”

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55. 4. 08.11.2008 13.11.2008 15.11.2008 21.11.2008 26.11.2008 29.11.2008 01.12.2008 06.12.2008 09.12.2008 12.12.2008 14.12.2008 19.12.2008 21.12.2008 23.12.2008 26.12.2008 29.12.2008 01.01.2009 03.01.2009 05.01.2009 07.01.2009 08.01.2009 14.01.2009 15.01.2009 20.01.2009 21.01.2009 23.01.2009 25.01.2010 28.01.2009 03.02.2009 05.02.2009 07.02.2009 11.02.2009 14.02.2009 17.02.2009 06.03.2009 11.03.2009 17.03.2009 25.03.2009 26.03.2009 28.03.2009 31.03.2009 03.04.2009 14.04.2009 16.04.2009 30.06.2009 02.07.2009 09.07.2009 11.07.2009 14.07.2009 16.07.2009 02.08.2009 04.08.2009 28.12.2009 30.12.2009 02.01.2010 04.01.2010 08.01.2010 10.01.2010 13.01.2010 15.01.2010 17.01.2010 20.01.2010 25.01.2010 Tota”

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3. 6 1456 days The period has been treated as dies-non. Petitioner has been dismissed from service.

5. After the penalty was levied the petitioner made representations and along therewith filed medical record pertaining to him which establishes that the petitioner was suffering from and continues to suffer from Bipolar Effective Disorder, and as per a certificate dated December 06, 2012 issued by Dr.Ram Manohar Lohia Hospital the mental disability assessed is 55%.

6. Now, the petitioner had joined service in July 1987. The order dismissing him from service is dated August 24, 2010 and it has been directed by a subsequent order dated October 19, 2012 that the period as tabulated above in para 3 comprising 1456 days shall be treated as dies-non.

7. Now, a person suffering from 55% mental disability due to Bipolar Effective Disorder would hardly be expected to realize the consequences of his action or defend himself at the inquiry. It is unfortunate that the near and dear ones of the petitioner or his friends did not guide him to seek a discharge from service due to mental disability, which would have to be treated as a disability justifying petitioners services being dispensed with. Had he done so, or had the Head of the Department directed the petitioner to be brought before a Medical Review Board, the department would have had a disability assessed to discharge petitioner from service and give him such benefits as would be due.

8. Now, the penalty levied upon the petitioner is under the CCA (CCS) Rules 1965 and as per Rule 11, of the many major penalties, vide clause-vii the penalty of compulsory retirement is listed.

9. Rule 40 of CCS (Pension) Rules reads as under:40. Compulsory retirement pension (1) A Government servant compulsorily retired from service as a penalty may be granted, by the authority competent to impose such penalty, pension or gratuity or both at a rate not less than two-thirds and not more than full compensation pension or gratuity or both admissible to him on the date of his compulsory retirement. (2) Whenever in the case of a Government servant the President passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these rules, the Union Public Service Commission shall be consulted before such order is passed. Explanation In this sub-rule, the expression pension includes gratuity. (3) A pension granted or awarded under sub-rule (1) or, as the case may be, under sub-rule (2), shall not be less than the amount of Rupees three thousand and seventy five per mensem.

10. Since pensionable service is 20 years, which petitioner would be deemed to have rendered; having joined service in July 1987 and being dismissed from service on August 24, 2000, but for the subsequent order dated October 19, 2012 which requires 1456 days tabulated in para 3 above to be treated as dies-non, we dispose of the writ petition converting the penalty levied upon the petitioner to one of compulsory retirement with effect from August 24, 2010 and we further direct that the period treated as dies-non as per order dated October 19, 2012 would no longer be treated as dies-non for purposes of pensionary benefits. However, no wages would be paid for said period. We further clarify that pension would be paid to the petitioner treating his service to be 20 years and not 23 years, which it would be because date of compulsory retirement is being retained by us as the date when penalty was levied. We are so restricting the pensionable service to strike a balance between the interest of the petitioner and the respondents. The interest of the petitioner being his having rendered 17 years actual service and thereafter incurring the unfortunate disability which adversely affected his mental faculties and the interest of the respondent being not to burden the respondent with a recurring pecuniary liability beyond the minimum.

11. We also sanction full compensation pension to be paid to the petitioner and for which arrears would be computed and paid within four months and future pension paid as per law.

12. No costs. CM No.9097/2012 Since the writ petition stands disposed of, instant application seeking ad-interim stay of the impugned order till disposal of the writ petition stands disposed of as infructuous. (PRADEEP NANDRAJOG) JUDGE (VEENA BIRBAL) JUDGE JANUARY 09 2013//dkb//

Same Court & Year Delhi · 2013 Same Parties Arun Kumar Sharma vs Union of India and anr Same Subject Education Same Judge Pradeep Nandrajog