Y.S. Tomar vs Food Corporation of India and Others

Sanjiv Khanna, J.—In this intra court appeal Y.S. Tomar has impugned the order dated 16th March, 2011, dismissing his Writ Petition (Civil) No. 2835/1994 and order dated 3rd June, 2011, dismissing his review application - CM No. 347/2011.

The Appellant was an employee of Food Corporation of India and was posted as Technical Assistant, Grade-I, in District Bhatinda. He had applied and was sanctioned leave from 2nd February, 1987 to 25th April, 1987, to avail Leave Travel Concession. The Petitioner did not report back for duty inspite of the fact that by telegram dated 3/4th April, 1987, the leave was cancelled on account of administrative exigencies and the Appellant was asked to rejoin the duty. The Appellant in response to the telegram had submitted that he had met with an accident and would be furnishing requisite medical documentation with request for extension of leave. However, nothing in proximity was furnished by the Appellant. The Appellant by another communication dated 12th May, 1987 was called upon to report for examination by the Chief Medical Officer (CMO). By yet another communication dated 1st June, 1987, the Appellant was asked to resume duty at once or in the alternative submit to the examination of CMO and obtain necessary medical certificate. There was No. response. Consequently, another detailed letter dated 27/29th June, 1987 was issued to the Appellant making reference to earlier letters and warning that disciplinary action shall be taken in the case the Appellant did not report for duty or report for examination by the CMO. Again there was No. response, resultantly a memo of charge dated 15.09/06.10.1987 was prepared and sought to be served on the Appellant. The memo of charge could not be served and was returned undelivered with the remarks that the Appellant was not available even after frequent visits. In these circumstances, a public notice was issued in the ''Tribune'' datelined 4th December, 1987. The Appellant was notified that in case he failed to report, his services would be dispensed with effect from the last date of his attendance by invoking provisions of Regulation 63(ii) of the FCI (Staff) Regulations, 1971.

The Appellant thereafter responded by telegram dated 27th December, 1987. The Appellant claims that he had written a letter but the same was not received and the Respondent dispute the said letter. As noticed by the learned single Judge, this controversy is inconsequential. Thereafter, the Appellant by letter dated 5th January, 1988 was asked to explain his absence. The Appellant gave some explanation by his letter dated 5th January, 1988 and also submitted medical certificates. Learned single Judge has recorded that the photocopies of the medical certificates were illegible and appear to span the period from April, 1987 to December, 1987. Learned single Judge has further noticed that the Appellant did not describe the nature of alleged injuries suffered by him. It is further recorded by the learned single Judge that a perusal of the medical certificate would show that the Appellant was advised bed rest for ostensible problem in his right knee. There is No. reference to the alleged fracture sustained by the Appellant in his right hand.

A formal charge-sheet dated 9th February, 1988 was served upon the Appellant. By this charge-sheet, the Appellant was also directed to appear before the CMO for medical check-up. In response, the Appellant stated that as far as appearing before the CMO was concerned he would come through the department and Rs. 1,000/- should be sent for conveyance. The aforesaid reply has been rightly categorized by the learned single Judge as No. reply. In case the Appellant was genuinely unwell and had suffered a prolong sickness, there was No. reason why he would have not got himself examined. It is a reflection on the attitude of the Appellant who had failed to attend duties and did not appear before the CMO inspite of repeated letters/reminders.

The Appellant did not appear before the enquiry officer on the ground that he was ill. The enquiry officer concluded his proceedings and submitted his report on 13th June, 1988. Enquiry officer held that the charge against the Appellant of absence without leave stood proved. The disciplinary authority in exercise of its powers under Regulation 56, imposed the penalty of dismissal from service. However, the appellate authority after considering grounds of appeal, reduced the penalty from dismissal to that of compulsory retirement. The order in review has sustained the order of the Appellant authority.

On merits there is hardly any material or ground for the Appellant to urge. The facts speak for themselves. The Appellant did not report back for duty after the leave. He remained absent from duty for a period of over an year from April, 1987 to May, 1988, when charge sheet was issued. Repeated communications and warnings proved futile. He did not even report and get himself examined by CMO. Such indiscipline and indifference to work obviously has its own consequences and the authorities have rightly observed that the charge against the Appellant of absence without leave stands proved.

The Supreme Court in Delhi Transport Corporation Vs. Sardar Singh, has held as under :

When an employee absents himself from duty, even without sanctioned leave for a very long period, it prima facie shows lack of interest in work. Para 19(h) of the Standing Orders as quoted above, relates to habitual negligence of duties and lack of interest in the authority''s work. When an employee absents himself from duty without sanctioned leave, the authority can, on the basis of the record, come to a conclusion about the employee being habitually negligent in duties and an exhibited lack of interest in the employer''s work. Ample material was produced before the Tribunal in each case to show as to how the employees concerned were remaining absent for long periods which affects the work of the employer and the employee concerned was required at least to bring some material on record to show as to how his absence was on the basis of sanctioned leave and as to how there was No. negligence. Habitual absence is a factor which establishes lack of interest in work. There cannot be any sweeping generalisation. But at the same time some telltale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.

Great emphasis was laid by learned Counsel for the Respondent employee on the absence being treated as leave without pay. As was observed by this Court in State of M.P. v. Harihar Gopal by a three-Judge Bench of this Court, even when an order is passed for treating absence as leave without pay after passing an order of termination, that is, for the purpose of maintaining correct record of service. The charge in that case was, as in the present case, absence without obtaining leave in advance. The conduct of the employees in this case is nothing but irresponsible in the extreme and can hardly be justified. The charge in this case was misconduct by absence. In view of the governing Standing Orders unauthorised leave can be treated as misconduct.

With regard to the medical certificates issued by private doctors, learned single Judge has rightly held that it was for the Appellant to prove the said medical certificates by appearing before the enquiry officer. As the Appellant did not appear and prove the said material, the disciplinary authority had No. occasion to discuss the said aspect.

In the review application, a new contention was raised that as per the sub Regulation 2 of Regulation 56 of FCI (Staff) Regulations 1971, the Deputy Zonal Manager was not the competent disciplinary authority as he was lower to the rank of the Appointing Authority or Promotion Authority. In this connection, our attention was drawn to the promotion order dated 27th August, 1971. It was submitted that the said order was issued by the Zonal Manager, though the letter was signed by the Deputy Manager (Admn.). The aforesaid contention was not raised before the authorities in the appeal or in revision. Learned single Judge has recorded that this contention was not raised at the time of arguments in the writ petition. The order dated 27th August, 1971, is signed by Mr. J.S. Mathur, Deputy Manager (Admn.) for Zonal Manager (North). This does not show who was the promoting or appointing authority. Moreover, the said order states that the named Quality Inspectors Grade-II had been promoted to officiate as Technical Assistant, Grade-I, on purely adhoc basis. They were required to report for duty to the Senior Zonal Manager concerned. This adhoc appointment could be cancelled at any time and the officers reverted without notice. The order further indicates that this adhoc promotion did not confer any right for promotion on regular basis. This was also without prejudice to other Quality Inspector Grade-II, who might have been senior to these officers. Thus, this contention is without merit.

In view of the aforesaid discussion, the present appeal is dismissed. No. orders as to costs.