1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT Smt. Vimla Nigam Vs. Bharat Sanchar Nigam Limited & others. DB CIVIL WRIT PETITION NO.13039/2010. Under Articles 226 & 227 of the Constitution of India. DATE OF ORDER: 1 st October, 2010. PRESENT HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE SATYA PRAKASH PATHAK Mr. Suresh Pareek with Mr. Shankarlal Sharma for the petitioner. Mr. N.C. Sharma for the respondents. AS PER HON'BLE S.P. PATHAK, J.: This writ petition under Articles 226 and 227 of the Constitution of India has been filed by petitioner- Smt. Vimla Nigam against the order dated 27 th July, 2010 passed by the learned Central Administrative Tribunal, Jaipur Bench, Jaipur (here-in-after to be referred in short as, 'the Tribunal') in Original Application No.274/2010 with MA No.180/2010 whereby the original application filed by the petitioner for quashing and setting aside the order dated 24.9.1999 and 22.12.1999 passed by the respondent has been rejected and the prayer made by the petitioner for voluntary retirement has been declined. 2 Briefly stated the facts, giving rise to the present case, are that the petitioner was appointed as PABX Telephone Operator in the P & T Department on 7.11.1978. She was sanctioned extra-ordinary leave for 15 days from 16.6.1997 to 30.6.1997. Thereafter, the petitioner did not attend the duties. The petitioner was served with a notice no. STA/7-1/TO/139 dated 21.11.1997 declaring her absconding from service w.e.f. 1.7.1997 and she was asked as to why the period of absence should not be treated as dies-non and disciplinary proceedings should be started. The petitioner submitted an application on 1.12.1997 for extension of leave from 1.7.1997 to March, 1998 stating therein that on medical grounds and on doctor's advice she was not in a position to attend the duties. The respondents thereafter served a charge-sheet on the petitioner on 6.9.1999. Before service of charge-sheet a notice was also served upon the petitioner on 21.11.1997 declaring the petitioner as absconding w.e.f. 1.7.1997. The respondent- Assistant General Manager (Administration) passed an order of punishment of reduction by two stages in the pay scale vide memo no. STA/7-1/TO dated 24.9.1999. The case of the petitioner is that he applied for voluntary retirement which was declined by the respondents on 22.12.1999. It is also case of the petitioner that the order declining her request of voluntary retirement was never served upon her as such another major penalty charge-sheet dated 8.6.2001 was served upon the applicant which culminated into imposition of penalty of removal 3 from service and willful absence from duty since 28.9.1999 was treated as dias-non. It is this order which was challenged before the Tribunal along with an application to condone the delay by the petitioner in the year 2010 with the relief that the application submitted by the petitioner be accepted with costs and the orders dated 22.12.1999 and 31.3.2004 and that of removal from service passed by the respondents be quashed and set aside. It was further prayed that the respondents may also be directed to pay the due benefit of GPF, Gratuity, leave encashment, CGISS, bonus and due salary from 16.6.1997 to 27.9.1999 and thereafter the payment of regular pension with interest @ 18% p.a. The learned Tribunal finding that the original application was filed after an inordinate delay of more than six years which was not properly explained, therefore, the application for condonation of delay was dismissed and the tribunal in relation to GPF amount of the petitioner observed that in case the petitioner makes proper request before the concerned authority for refund of GPF amount, the same shall be considered within a period of three months. The above order was passed on 27.10.2010. The petitioner having felt aggrieved by the order passed by the tribunal, preferred the present writ petition. We have heard learned counsel for the petitioner and have carefully perused the impugned order passed by the Tribunal and also the material available on record. 4 It has been the contention of the learned counsel for the petitioner that there was no information received by her in relation to rejection of the application moved by her seeking voluntary retirement. It has also been contended that on account of medical advice she remained absent from duty. It has further been contended that since the petitioner was suitably punished for absence from duty by reduction of two stages in the pay scale, therefore, the respondents should have allowed the application moved by the petitioner for voluntary retirement. We have considered the submissions made before us. It is to be seen that the learned Tribunal has found that there was no proper explanation for six years inordinate delay in filing the original application and the reason given by the petitioner for the delay was that the letter of punishment for removal from service dated 31.3.2004 was received by her in the month of April, 2004 in USA and she could not come to India because of her illness has not been supported by any material as no medical certificate was produced to show that either she was ill or she was adviced by the doctor not to travel by flight. The tribunal also found that it was a vague averment made in the application without there being proper explanation, therefore, the inordinate delay of six years was not liable to be condoned. The tribunal further observed in the order that the original application was required to be filed under section 21 of the Administrative Tribunals Act, 1985 within one year from the date of final order and in the present case the 5 final order was passed on 31.3.2004, the petitioner was required to file original applicatioan on or before April, 2005 whereas the original application was filed on 25.5.2010 i.e. after a lapse of more than six years that too without there being proper explanation for the delay. The tribunal further found that the conduct of the petitioner may fairly be regarded as equivalent to waiver of right and she cannot be granted relief especially when she has abandoned from service since 28.9.1999 and left the country without any permission of the competent authority. The contention of the learned counsel that the order rejecting the prayer made by the petitioner for voluntary retirement was declined and no intimation was made to her is not liable to be accepted for the reason that at the time of examination by defence assistant vide Annexure-3 the petitioner has admitted that she was intimated about non-acceptance of voluntary retirement after three months. Another contention of the learned counsel that on account of illness and under medical advice, the petitioner did not attend the duty is concerned, that argument is also liable to be rejected for the simple reason that no proof was furnished in relation to sickness or medical advice given by the doctor not to travel by flight in the year 2004 and onwards upto 2010. In the absence of sufficient reason simply on the basis of vague averments to condone delay, it cannot be presumed that on account of illness she did not attend the duty and remained 6 absent. It shall be pertinent to mention here that after sanction of 15 days extra-ordinary leave, the petitioner had gone abroad and thereafter did not return on duty. The leave was sanctioned w.e.f. 16.6.1997 to 30.6.1997. A notice was also served on 21.11.1997 on the petitioner declaring that the absence from duty w.e.f. 1.7.1997 shall be treated as absconding from duty. In the departmental inquiry conducted against the petitioner, it was found that wilfully she had absconded from duty, as such major penalty for removal from service was imposed. The learned tribunal has also observed while disposing of the original application that in case in relation to GPF amount proper application is filed by the petitioner then the authority concerned shall pass appropriate order within three months after receipt of such application. In view of fore-going discussion, we do not find any illegality in the order passed by the tribunal and the contentions raised by the petitioner having no merit are liable to be rejected. The writ petition, therefore, being devoid of merit is liable to be dismissed summarily. In the result, the writ petition stands dismissed summarily. (SATYA PRAKASH PATHAK),J (ARUN MISHRA),J. BBLM