* 1 * IN THE JUDICATURE OF HIGH COURT AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2584 OF 2007 Pandurang Vithal Kevne .....Petitioner/Orig.Second Party in Ref.No.1/12 of 2004. V/S. 1. Bharat Sanchar Nigam Ltd (Telecom Factory) Deonar, Mumbai-400 088. ....Respondent/Orig.First Party in Ref No.1/12 of 2004. 2. Union of India .....Respondent --------- Ms.B.P.Jakhade, adv.for petitioner. Mr.A.S.Rao, adv.for respondents. CORAM : J.N. PATEL, & SMT. R. P. SONDURBALDOTA, JJ. JUDGMENT RESERVED ON : 22ND SEPTEMBER, 2009. JUDGMENT PRONOUNCED ON: 5TH DECEMBER, 2009. JUDGMENT : (Per :- Smt. R. P. SondurBaldota, J) 1. The petitioner before us was working as an Examiner with respondent no. 1, since the year 1977. On 11th December, 1997 he was chargesheeted for misconduct of absenteeism. The domestic inquiry held against him found him guilty of misconduct resulting into punishment of removal from service with * 2 * effect from 14th July 2009. The appeal preferred by the petitioner to the appellate authority of the respondent was dismissed. Then a reference came to be made by the Central Government under Section 10 (1) (D) of the Industrial Disputes Act, 1947 to the Central Government Industrial Tribunal, Mumbai. The Tribunal by its Award dated 22nd December, 2006 held that the charge of misconduct against the petitioner was proved and the punishment of removal from service was a proper punishment. Hence, this petition by the petitioner for quashing of the Award and for his reinstatement in service with full backwages. 2. The chargesheet alleged absenteeism of the petitioner for the following period. (a) 1-1-1995 to 27-5-1996 (b) 5-6-96, 11-6-96, 21-6-96, 29-6-96 (c) 2-7-96, 3-7-96, 5-7-96, 8-7-96, 19-7-96, 27-7-96, 31-7-96 (d) 1-9-96, 3-8-96, 4-8-96, 5-8-96 to 9-8-96, 16-8-96. (e) 21-8-96 to the date of chargesheet (11-12-1997) . This, according to the chargesheet, is an act of misconduct under the provisions of Rule 31(g) of Certified Standing Order read with Rule 3 (i), (ii) and (iii) of Central Civil Service (Conduct) Rules, 1964. The petitioner does not dispute that he was absent during the aforesaid period, but, seeks to explain the same. Ms.Jakhade, the learned counsel for the petitioner, submits that the entire * 3 * period under the chargesheet during which the petitioner was absent from service, has been validly explained by him and his absence from duty is regularised by respondent no.1 by sanctioning different types of leave therefor. She draws our attention to the fact that the period of absence at Item No.(a) of continuous absence of 511 days during 1-1-1995 to 27-5-1996, has been regularised by sanctioning half-pay leave of 30 days and the remaining as Earned Leave. The sanction was post-facto sanction vide memo dated 14th June, 1996. The days of absence at Items No.(b), (c) and (d) are of either single day or a couple of days i.e. not exceeding 10 days. For these days, either Casual or Annual or HPL leaves has been sanctioned. As regards the last Item No.(e) of about 375 days during 21-8-1996 to 11-12-1997, the petitioner contends that part of this period i.e. from 21-8-1996 to 3-9-1997 is Earned Leave. The balance period has been treated as Dies-Non thereby regularising the same without “ ” payment as permitted under the Leave Rules. Mrs.Jakhade argues that since the entire period of absence has been validly explained, the absence during the period cannot come under the mischief of misconduct under Rule 31 of Certified Standing Order and Rule 3 (i), (ii), (iii) Central Civil Service (Conduct) Rules. 3. For clear appreciation of the rival contentions, it will be convenient to set out the above mentioned Rules at this stage. I. Rule 31. MISCONDUCT- “ The following acts or omissions shall be treated as misconduct :- * 4 * (a) Breach of Central Civil Services (Conduct) Rules 1964, as applicable under standing order 39-A. (g) Habitual absence without leave or absence without leave or intimation for more than 10 days. II. Central Civil Services (Conduct) Rules 1964 – Rule 3 : General (i) Every Government servant shall at all time maintain absolute integrity. (ii) Maintain devotion to duty. (iii) Do nothing which is unbecoming of a Government servant.” 4. It will also be relevant to note here the statement of imputations of misconduct at Annexure II to the chargesheet so as to understand the specific charges against the petitioner. The statement is as follows : Statement of imputations of mis-conduct and or mis-behaviour in “ support of the articles of charge framed against Shri. P. V. Kevane, 8908/13, Examiner, T.F., Mumbai-88 . That the said Shri. P. V. Kevane remained absent from 1-1-95 to 27-5-96 and 5-6-96, 11-6-96. 21-6-96, 25-6-96, 29-6-96 and 2-7-96, 5-7-96, 8-7-96, 19-7-96, 27-7-96, 30-7-96, 31-7-96 and 1-8-96, 3-8-96, 4-8-96, 5-8-96 to 9-8-96, 16-8-96, 17-8-96, 19-8-96 and from 21-8-96 to till date without obtaining prior permission or intimation. He had not sent any communications stating the reasons for his absence to this office. Shri. Kevane was asked to report for duties vide AE (Insp) letter No. TFM/AE/Insp/Staff/Dosc/97-98 dt. 24-2-97, 7-7-97 and 21-7-97 but all the letters were returned with a remark `Not Found by the postal authorities. ’ . The above said act on account of Shri. P. V. Kevane is an act of misconduct under the provisions of Rule 31 (g) of C.S.O. Read with Rule 31 (i), (ii) & (iii) of C.C.S. (Conduct) Rules 1964. Shri. P.V. Kevane by his above act had exhibited lack of maintaining devotion to duty and thereby violated the provisions of Rule 31 (g) of C.S.O. Read with Rule 3 (1), (ii), (iii) of C.C.S. (Conduct) Rules, 1964.” * 5 * . It is clear from the above statement that what is alleged against the petitioner is not just his absence during the period mentioned above, but, his absence during the period without obtaining prior permission or intimation or communication of any nature. The petitioner does dispute that he had not obtained prior permission to remain absent from duty and that he had not sent any intimation or communication to his office stating reasons for his absence. 5. Mr. Rao, the learned counsel for the respondents, submits that even if the absence of the petitioner from duty was subsequently regularised by granting leave with or without pay, the petitioner cannot escape the rigours of the mischief of misconduct, because that is not sufficient to conclude that leave was not unauthorised. In this connection, he relies upon a decision of the Apex Court in the case of Delhi Transport Corporation V/s. Sardar Singh reported in A.I.R. 2004 S.C. page 4161 wherein the Apex Court observes as follows : When an employee absents himself from duty, even without sanctioned “ leave for very long period, it prima-facie shows lack of interest in work. Para 19(h) of the Standing Order 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 * 6 * interest in the employer s work. ’ ” AND Habitual absence is a factor which establishes lack of interest in work. “ There cannot be any sweeping generalization. But at the same time, some tell-tale features can be noticed and pressed into service to arrive at conclusions in the departmental proceedings.” . He further submits that the absence of an employee is always required to be regularised in some way for the purpose of maintaining correct record of duration of service. He seeks to draw support for his submission from the decision of the Apex Court in the case of State of Madhya Pradesh V/s. Harihar Gopal 1969 reported in S.L.R. (S.C.) page 274 holding that order granting leave was only for the purposes of maintaining correct record of service. 6. Ms. Jakhade, on the other hand, relies upon decision of the Apex Court in Shri. Bhagwan Lal Arya V/s. Commissioner of Police, Delhi & Ors. reported in (2004) 4 S.C.C. page 560 to submit that the absence of an employee on medical ground with application for leave, as well as, sanction of leave can under no circumstances be termed as grave misconduct. The Apex Court in that case held that the employee had to proceed on leave under compulsion because of his grave condition of health and therefore the punishment of removal from service was excessive and disproportionate. The Apex Court had * 7 * also taken into account the mitigating circumstance of inability of the appellant to get another job. The appellant before the court, a constable in Delhi Police, while undergoing the prescribed training had fallen down on the parade ground and since then was absent from duty for 2 months and 8 days. Thus, his was the case of willful absence from service on a single occasion, unlike the petitioner before us. Further, the Apex Court had only modified the punishment awarded to the appellant before it, while maintaining the finding of misconduct. 7. Misconduct alleged on the part of the petitioner is not limited to mere absence from service. Had it been so valid justification for the absence and it s’ subsequent regularisation would have served the petitioner s purpose. What is ’ treated as misconduct under Rule 31 (g) is (i) habitual absence without leave or (ii) absence without leave or intimation for more than 10 days. Therefore, we are of the view that an employee who is in habit of remaining absent without prior sanction of leave irrespective of the number of days, is guilty of misconduct under the first part of Rule 31 (g). If he is absent without leave or intimation for more than 10 days, not necessarily by way of habit, he is guilty of misconduct under the second part of Rule 31 (g). In our opinion, the reason why such conduct is made misconduct under the Rule is that, it exhibits irresponsibility and lack of interest in work. Rule 3 of Central Civil Services (Conduct) Rules, 1964 requires that every Government servant must at all time maintain absolute integrity and devotion to duty. A person who is in the habit * 8 * of remaining absent without prior sanction of leave and remains absent for a long period of more than 10 days without leave or intimation, is not somebody who is devoted to duty or maintains integrity. The conduct of the petitioner is required to be tested on the above anvil. 8. The time period covered by the chargesheet is of 3 years. In the first year i.e. 1995, the petitioner was absent for 355 days, in the second year i.e. 1996 for 285 days and in the third year i.e. 1997 for 245 days. It is the evidence of respondent no.1 that after long continuous absence of more than a year from 21-8-1996, the petitioner appeared in the office on 4-9-1997 to join duty. He had submitted medical certificate for his absence during the period 21-8-1996 to 3-9-1997. The management directed him to go for medical examination for second medical opinion in J.J. Hospital. The petitioner appeared before the Medical Board of J.J. Hospital on 6-10-1997. On the same day, the Medical Board issued certificate declaring him fit to resume duty. But the petitioner reported for duty only on 27-1-1998. Respondent no.1 received copy of the medical certificate from the Hospital on 13-1-1998. For his absence from duty, from 4-9-1997 to 27-1-1998, the petitioner did not even submit leave application contending that this period is covered by medical examination. The above facts are not disputed by the petitioner. Mr.Rao, submits that, during this period of 3 months since the medical examination, the petitioner displayed no earnestness or anxiety to join the duty at the earliest. Instead, he slept over the matter * 9 * and did not care to enquire about his fitness certificate. 9. After the petitioner resumed duty on 27-1-1998, he worked barely for a couple of days before applying for casual leave of 2 days i.e. for 4-2-1998 and 5-2-1998. Thereafter, the petitioner again went on long leave by remaining absent for 2 months. He had intimated office vide medical certificate dated 6-2-1998 for 2 months. Later, when the petitioner came to office on 7-4-1998 he was advised to appear before Medical Board of J.J. Hospital, but, he failed to appear despite repeat telegrams. 10. The witness of respondent no.1 also deposed that on 2-8-1996, the petitioner was awarded penalty of reduction of pay to the lower stage for a period of one year without cumulative effect for remaining absent from duty from 2-2-1992 to 8-7-1992. Despite the penalty of reduction of pay, the petitioner showed no improvement in his attendance. The witness further stated that the absence of the petitioner was so frequent that respondent no.1 got police investigation done by means of confidential letter dated 6-5-1998, after institution of the domestic inquiry. The police submitted their report which was received during the pendency of the proceedings before the Central Government Industrial Tribunal. The report stated that the petitioner was carrying on private business at his native place in the name of `Vaibhav Engineering Works , a unit of Kevane Industries. The petitioner was personally ’ looking after the business, though it stood in the name of his wife. He was * 10 * maintaining himself and his family from the income of the business, as well as, agricultural income. 11. Ms. Jakhade, takes a strong objection to consideration by the Tribunal of the conduct of the petitioner in pre and post chargesheet period. She submits that the petitioner is indicted for his actions which is beyond the chargesheet, and the same is not permissible in law. She argues that the learned Presiding Officer of the Central Government Industrial Tribunal has based his decision on the above facts which are extraneous to the chargesheet and cannot be taken into account for establishing his misconduct. 12. We have given anxious consideration to the above submission of Ms. Jakhade. We have scrutinized the impugned judgment and are unable to persuade ourselves to agree with Ms.Jakhade. The petitioner was admittedly absent without prior sanction of leave during the entire period mentioned in the chargesheet. This absence was regularised by post facto sanction on his application. For the period of 4-9-1997 to 27-1-1998 he did not even submit an application. The conduct of the petitioner is covered by both parts of Rule 31 (g) above. The chargesheet shows that the petitioner did not work for the entire year of 1995 and continued to remain absent till 27-5-1996. After resuming duty towards the end of May 1996, within the next 3 months he remained absent, 18 times. Then, from 21-8-1996 he was absent for 275 days till the chargesheet dated 11-12-1997. If this is not habitual absence from duty * 11 * without leave, one wonders what else can be. As per the petitioner s claim and ’ the medical certificate submitted by him alongwith the application for leave, he was suffering from Asthamatic Bronchitis and taken treatment from the civil hospital at Alibaug. Beyond the certificate, however, there is no further material produced by the petitioner, as regards his ailment. The medical certificate was produced by the petitioner by way of justification for his long absence on two occasions, but one cannot ignore the absence of the petitioner, 18 times during the period of 3 months at Items No.(b), (c) and (d) of the chargesheet. The learned Presiding Officer of the Tribunal has precisely considered these aspects of the matter and the conduct of the petitioner after he subjected himself for medical examination on 6-10-1997. The learned Presiding Officer has not based his decision as regards the charge of misconduct on the conduct of the petitioner in pre and post chargesheet period. No doubt, this conduct has been discussed in the impugned judgment and order. This conduct of the petitioner though not relevant for bringing home the charge under the chargesheet against him, is definitely relevant for considering the punishment to be awarded to him. In our opinion, the decision of the Tribunal in holding the petitioner guilty of the misconduct alleged against him and upholding the punishment of removal from service, is correct decision. It is writ large on the facts of the case, that the petitioner is least interested in his duty. The petition therefore, deserves to be dismissed. * 12 * 13. A couple of more arguments were advanced on behalf of the petitioner in the matter which are minor in nature and hence not required to be dwelt upon at length. However, a brief reference to them would be appropriate. Ms. Jakhade, submits that the Tribunal in its impugned order has relied upon the alleged chargesheet dated 29-12-1998, whereas, the chargesheet issued to the petitioner is 11-12-1997. The chargesheet dated 29-12-1998 was not even produced on record. Therefore, the impugned order based upon the chargesheet dated 29-12-1998 is illegal and bad in law. No doubt, at paragraph-14 of the impugned order the Tribunal refers to the chargesheet dated 29-12-1998. But, this obviously is a typographical error, since at other places in the impugned order, the correct date of the chargesheet is stated. It is also submitted by Ms.Jakhade that the documents on which reliance was placed by the respondent were not supplied to the petitioner and that the documents were also not produced before the learned Tribunal. This submission is devoid of any particulars. The petitioner does not specify the documents of which inspection was given to him. In any case, the impugned decision is based purely on admitted facts. Therefore, we find no substance in the grievance made. In all the facts and circumstances of the case, the petition is dismissed. No order as to costs. [SMT. R. P. SONDURBALDOTA, J] [J. N. PATEL, J] * 13 *