W.P.(C) No.7415 /2008 Page 1 of 34 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No.7415 /2008 Date of Decision: 15th February, 2010 RAM NIWAS ..... Petitioner Through: Mr. Sanjay Sharawat, Advocate versus UOI & ORS ..... Respondents Through: Ms. Divya Jha and Mr. Darpan Wadhwa, Advocates CORAM: HON’BLE MS. JUSTICE GITA MITTAL HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers may be allowed to see the judgment? : Yes 2. To be referred to Reporter or not? : Yes 3. Whether the judgment should be reported in the Digest? : Yes % JUDGMENT (Oral) GITA MITTAL, J. 1. By this writ petition, the petitioner has assailed the order dated 21st September, 2006, whereby the Competent Authority of the Air Force has found the petitioner guilty of the charge for having absented himself from duty without prior permission and has imposed the penalty of “compulsory retirement” upon him. 2. The facts giving rise to the present petition are in a narrow compass and to the extent necessary, are briefly noted hereafter: W.P.(C) No.7415 /2008 Page 2 of 34 (i) The petitioner was appointed on 17th July, 1987 at the age of 23 years as a Mess Waiter, which was a Group “D” civilian post in the Indian Air Force. Leave was sanctioned to him from 12th April, 2003 to 16th April, 2003 to appear in his class 10 examination from Haryana Open Learning School. (ii) It is not disputed that on expiry of the above period, the petitioner did not resume duties but remained on leave from 25th April, 2003 to 09th June, 2003. There is some dispute with regard to whether such leave was authorized or not. However, in view of the facts noticed in para (vii) below, it is not necessary for us to go into the legality of this action of the petitioner. (iii) It is an undisputed position that the petitioner resumed duty on 10th June, 2003. The petitioner has contended in the writ petition that instead of his service being utilized as Mess Waiter, he was shifted and assigned the duty of Mechanical Transport Driver. Admittedly, the petitioner was not paid his salary for the months of May, June and July 2003. The reason for the same, as per the respondents, was his failure to attend to his duties. On the other hand, the petitioner has disputed the respondents claim that he had not attended to his duties. It is submitted that he had requested the respondents to start maintaining a daily attendance register. This was done, and the W.P.(C) No.7415 /2008 Page 3 of 34 petitioner used to mark his attendance in such register. (iv) It is the petitioner‟s case that he was in dire need of finance, inasmuch as, his five children were all young and school going. His family included aged parents, wife and five children apart from himself. The petitioner states that he was unable to bear even the expenses of commutation to and from his place of work. The petitioner was the sole bread earner for his family. The deprivation of the salary reduced the family to financial penury to the extent that the petitioner was unable to bear the expense required for the commutation between home and office. In this background, the petitioner was unable to attend his office with effect from 04th August, 2003. (v) The respondents issued a communication dated 05th September, 2003 to the petitioner, informing him that his absence from duty was unauthorized and would entail penal consequences. The respondents required the petitioner to report to the authorized medical attendant/government hospital in case of sickness and to obtain appropriate certification for joining duties. The respondent also required the petitioner to inform the reasons for his absence within 10 days of the receipt of the letter. (vi) Vide a communication dated 18th September, 2003, the petitioner clearly informed the respondents that he had not W.P.(C) No.7415 /2008 Page 4 of 34 been paid any salary from May 2003 till date and was unable to report to his posting without the requisite finances. Detailed submissions with regard to his dire straits, and that of his family members on account of denial of salary to him were set out. The petitioner made a prayer for release of payment to him so that he could resume his duties. (vii) The respondents informed the petitioner by a communication dated 29th September, 2003 that the leave period from 25th April, 2003 to 09th June, 2003 has been regularized as per his entitlements and advised him to report for duty without any further delay. (viii) It is an admitted position before us that the respondents paid the consolidated salary of five months for the period May 2003 to September 2003 to the petitioner only thereafter. This regularization of the petitioners‟ absence from 25th April, 2003 to 09th June, 2003 as well as the payment of salary for May to September, 2003 was made unconditionally and without any kind of reservation with regard thereto. Immediately on receipt of the payment, the petitioner resumed duties with effect from 11th October, 2003. (ix) Despite performance of his duties, the petitioner‟s salary for the months of November and December 2003 was withheld by the respondents. No notice at all was given to W.P.(C) No.7415 /2008 Page 5 of 34 the petitioner nor any reasons for this action were assigned before the action was actually taken. (x) It was only by a communication dated 16th December, 2003 that the respondents chose to inform the petitioner that for the reason he had remained absent from duty with effect from 04th August, 2003 to 10th October, 2003 without prior permission, and had also not submitted application for leave for this period, his salary and allowances for the subsequent period had been withheld by them. The respondents had also suggested that the petitioner move an application for leave for this period for further proceeding. A reminder in this behalf was also addressed to the petitioner on 21st January, 2004. (xi) The petitioner contends that as his salary was not paid, he was unable to meet his expenses, and for the same reasons noticed herein above, he was again rendered unable from committing to the office with effect from 16th January, 2004. (xii) So far as the absence of the petitioner with effect from 16th January, 2004 was concerned, the respondents issued a communication dated 11th February, 2004 requiring the petitioner to explain the reasons for his absence, failing which disciplinary action against him was threatened. (xiii) The petitioner responded by his communication dated 17th W.P.(C) No.7415 /2008 Page 6 of 34 February, 2004 reiterating the above deprived status of his family again citing dire financial straits as the reasons for his absence. In addition, the petitioner stated that he was a poor person from the rural background without any other source of income; that his savings also stood exhausted in bearing the expenses of family; and that he could not even pay the education fees of his children. The petitioner had also drawn the attention of the respondents to the satisfactory service rendered by him since his appointment. He also reminded the respondents that earlier also in similar circumstances, he had been unable to report for duty for the period between 04th August, 2003 to 10th October, 2003 and had resumed his duties with the respondent in the past as soon as he was given the consolidated salary for the period from May to September 2003. A prayer was also made to regularize his absence for the period from 16th January, 2004 till date on the ground that the same was in the afore detailed circumstances totally beyond his control and that there was no fault which could be attributed to him. (xiv) The respondents issued a memorandum dated 23rd February, 2004 informing the petitioner that an enquiry was proposed to be conducted against him under Rule 16 of the Central Civil Services (CC&A) Rules, 1965 and charges for remaining absent continuously/occasionally W.P.(C) No.7415 /2008 Page 7 of 34 from duty without permission were enclosed. The respondents called upon the petitioner to file a reply to the said memorandum. (xv) Perusal of the articles of charge would show that the first charge related to the petitioner‟s absence with effect from 04th August, 2003 to 10th October, 2003, and from 16th January, 2004 onwards. The second charge was with regard to the petitioner‟s „habitual absenteeism‟. (xvi) The petitioner tendered his reply dated 26th February, 2008, which was similar to his earlier responses and detailed the same reasons for his absence. (xvii) In the meantime, the respondents issued yet another communication dated 11th March, 2004 requiring the petitioner to report on duty and to submit a leave application for the aforesaid period, failing which it was threatened that disciplinary action would be taken against him under the applicable rules. The petitioner again responded by his letter dated 16th March, 2004, repeating the same stand as already noted above. (xviii) The petitioner submits that he was constrained to file a writ petition being W.P. (C) No.5692/2004 before this court, inter alia, seeking the quashing of the charge memo dated 23rd February, 2004; a direction to the respondents to take the petitioner on the job and to mark his attendance; a W.P.(C) No.7415 /2008 Page 8 of 34 direction to the respondents to regularize his absence for the aforenoted period during which he had remained absent; a direction for release of salary, or at least subsistence allowance so that he could join his duty; and an order quashing the order dated 16th December, 2003. (xix) The respondents contested this writ petition for a period of four years. It is the petitioners‟ case before us that despite the specific prayer in the petition for a direction to the respondent to take the petitioner on the job, the respondents did not make a statement to the effect that the petitioner may report for duty at any point of time. The counter affidavit filed in those proceedings has been placed before us which also does not contain such statement. It is also submitted that his salary for the period from November 2003 was also never tendered to him and that the respondents did not take into consideration any of the facts and circumstances especially financial penury submitted by him as the reasons for his absence from duty. (xx) The writ petition, which had been instituted on or about 15th April, 2004, remained pending till 28th July, 2008. In the meantime, the respondents passed the impugned order dated 21st September, 2006, compulsorily retiring the petitioner. On 28th July, 2008, when the said petition was taken up, the petitioner withdrew this writ petition with W.P.(C) No.7415 /2008 Page 9 of 34 liberty to assail the order of compulsory retirement dated 21st September, 2006 passed against him. (xxi) Our attention has also been drawn to three orders, whereby the respondents cancelled the memorandums of charge sheet issued to the petitioner without prejudice to right of the Disciplinary Authority to initiate disciplinary proceedings under the CCS (CC&A) Rules, 1965. It is explained by the learned counsel for the respondent that these cancellations and fresh charge sheets were necessitated in view of the continuous absence without leave of the respondent. It is submitted that the fresh charge sheets were issued each time to include, in their ambit, charges relating to the additional period for which the petitioner had been absent. In this background, by a communication dated 31st January, 2004, the respondents cancelled the charge sheet issued on 23rd February, 2004 and, at the same time, issued a fresh memorandum and charge sheet dated 31st January, 2005 against the petitioner. It is noteworthy that the earlier memorandum and charge sheet had been issued under Rule 16 of the Central Civil Service (Classification, Control & Appeal Rules, 1965) (referred to as the „CCS (CC&A) Rules, 1965‟ hereafter) for imposition of minor penalties. However, by the memorandum dated 31st January, 2005, the respondents proposed to hold an W.P.(C) No.7415 /2008 Page 10 of 34 enquiry for imposition of major penalty under Rule 14 of the CCS (CC& A) Rules, 1964. This charge sheet was issued for the absence of the petitioner from 04th August, 2003 to 11th October, 2003 and from 16th January, 2004 to till date. (xxii) This charge sheet dated 31st January, 2005 was cancelled by a communication dated 30th June, 2005 and substituted by another memorandum and charge sheet of the same day. It is noteworthy that by the charge sheet dated 30th June, 2005, the respondents proposed to conduct an enquiry against the petitioner for his absence for the period commencing from 16th January, 2004 onwards only. Thus the absence for the period 04th August, 2003 to 10th October, 2003 stood deleted from the scope of inquiry. (xxiii) The charge sheet dated 30th June, 2005 was also cancelled by memorandum dated 16th February, 2006. The respondents now proposed to hold an enquiry against the petitioner by this memorandum dated 16th February, 2006 on the charge of unauthorized absence from duty for the period 16th January, 2004 onwards by incorporating the absence for the later period as well. (xxiv) The petitioner‟s response to the memorandum dated 16th February, 2006 has been placed before us. In addition to the aforenoted contentions which were repeated in this reply, the petitioner has categorically stated his objection W.P.(C) No.7415 /2008 Page 11 of 34 to the stopping of his salary without any reason or without issuance of any show cause notice. A categorical stand was also taken by the petitioner that he had done his best to join duties and requested the authority repeatedly for permission to do so as well as for release of his salary to enable him to join duty, but was not permitted to join duties on one pretext or the other. It is noteworthy that the petitioner strongly objected to the respondents‟ requirement of submission of an application by him with a medical certificate for the period from 04th August, 2003 to 10th October, 2003, and drew attention to his preceding application setting out the afore noted facts as the only explanation of his absence. The petitioner had again made a prayer for release of wages to enable joining of duty and regularization of his absence from 16th January, 2004. (xxv) The respondents found the explanation of the petitioner unsatisfactory and initiated a departmental enquiry under Rule 14 of CCS (CC&A) Rules. In these proceedings, statements of two witnesses were recorded in support of the charges against the petitioner. The petitioner also examined two witnesses in his defence. (xxvi) A provisional conclusion was drawn that the petitioner was not fit to be retained in service and the penalty of compulsory retirement was proposed to be imposed on him. The disciplinary authority issued notice to show cause W.P.(C) No.7415 /2008 Page 12 of 34 dated 07th July, 2006 informing the petitioner of such proposed action and opportunity was given to the petitioner to make a representation against the proposed penalty. The petitioner‟s reply dated 29th July, 2006 was considered by the Disciplinary Authority who made the following observations in the order dated 21st September, 2006 passed by him: “ (a) While his absence from duties as mentioned in Article-I has been established, Shri Ram Niwas has not submitted any evidence whatsoever to substantiate that he was sick or that any of his family members were sick as stated by him or any other reason/justification as to why he absented himself for such long period without any information. (b) Despite affording him all opportunities in writing to join the duty and to apply for regularization of his period of absence on medical grounds, or any other legal grounds, by substantiating the same, he failed to do so. (c) His claim that his entire period of absence be regularized and salary be paid is inappropriate and does not merit consideration. (d) His contention that he was not allowed to join the duties is entirely false and baseless.” W.P.(C) No.7415 /2008 Page 13 of 34 On these observations, the disciplinary authority found the petitioner guilty of the charge of wilful absenteeism from his duty without prior permission/intimation to the authorities, and imposed the penalty of compulsory retirement upon him. (xxvii) As noted above, in view of this order, the petitioner withdrew the Writ Petition (C) no.5692/2004 on 28th July, 2008 with liberty to assail the order dated 24th September, 2006, by appropriate proceedings. (xxviii) The present writ petition has been filed in the above factual background on the ground that the order dated 21st September, 2006 is violative of the petitioner‟s rights enshrined under Articles 21 and 23 of the Constitution of India; that it does not take into consideration the case of the petitioner and is not sustainable in law. It is further submitted that it was the petitioner‟s contention throughout that he was not suffering from illness which required him to be absent and his ground for absence was due to deprivation of salary and his financial straits which have not even been considered, let alone dealt with by the competent authority. Article 23 of the Constitution of India, recognizes the fundamental right of the citizens of this country not be compelled to work without wages. Mr. Sanjay Sharawat, learned counsel for the petitioner has W.P.(C) No.7415 /2008 Page 14 of 34 also placed reliance on the pronouncements reported at Ram Lakhan Prasad v. State of Bihar, 1995 (7) SLR 70; Suraj Narain v. State of Madhya Pradesh, AIR 1960 MP 303; Ruiweinao Kahasoan Tangkhul v. Ruiweinao Simirei, AIR 1961 Manipur 1; Peoples Union for Democratic Rights v. UOI, (1982) 3 SCC 235; Olga Tellis v. Bombay Municipal Corp, AIR 1986 SC 180; State of Gujarat v. Hon’ble High Court of Gujarat, (1998) 7 SCC 392; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1; Food Craft Inst v. Rameshwar Sharma, 134 (2006) DLT 49 in support of his contentions :- 3. The core question which requires to be answered in the instant case is as to whether the respondents could legally withhold the payment of the wages for the period for which the petitioner had actually discharged duties from 11th October, 2003 to 16th January, 2004. The further question which requires to be answered as to whether in the given circumstance the petitioner was legally justified in not reporting for duty thereafter. 4. From the above narration, it is necessary to firstly examine the nature of the right of a person to claim entitlement to employment. 5. So far as the nature of the right to livelihood and payment of wages is concerned, reference can usefully be made to the pronouncement of the Supreme Court in AIR 1986 SC 180, Olga W.P.(C) No.7415 /2008 Page 15 of 34 Tellis v. Bombay Municipal Corporation. In paragraph 32 of the judgment, the Supreme Court was called upon to answer the question as to whether the right to life guaranteed under Article 21 of the Constitution of India includes the right to livelihood. In this behalf, in paragraph 32 of the judgment, the Supreme Court held as follows: “We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which propels their desertion of their hearths and homes in the villages W.P.(C) No.7415 /2008 Page 16 of 34 that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live : Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas J. in Baksey, (1954) 347 M.D. 442 that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois (1877) 94 U.S. 113, means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. The State of U.P. (1964) 1 SCR 332 : (AIR 1963 SC 1295)”. Right to livelihood is, therefore an essential and integral part of right to life, constitutionally guaranteed under Article 21 and breach whereof cannot be tolerated under any circumstance. 6. In order to answer the issues noticed above it becomes necessary to examine the constitutional scheme and the rights of employees as well as prohibitions thereunder. Article 23 enacts a very important fundamental right, which is in the following terms: “23. Prohibition of traffic in human beings and forced labour (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law W.P.(C) No.7415 /2008 Page 17 of 34 (2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.” 7. It needs no elaboration that the fundamental right conferred by Article 23 is also enforceable against not only the State, but also against the whole world. This article is designed to protect the individual against any form of forced labour practiced by any person and has its genesis in the socio-economic conditions of the people at the time the constitution came to be enacted, with a view to ensure socio and economic justice to the large masses of people living in abject poverty, destitution and slavery. The economic deprivation itself places them at the bottom of the hierarchy of those marginalized reducing them to the position of those having no kind of bargaining power or choice. The rights recognized and conferred under Article 23 are aimed at preventing exploitation of such marginalized persons with a view to imbibing charitarian values into society and ensuring human dignity and basic human rights of the people. 8. In the pronouncement of the apex court reported at 1982 (3) SCC 235, People’s Union for Democratic Rights