Kulbir Singh Bedi vs Municipal Corporation Of Delhi And Ors. on 29 August 2005

Delhi High Court
Kulbir Singh Bedi vs Municipal Corporation Of Delhi And Ors. on 29 August, 2005
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat

JUDGMENT

S. Ravindra Bhat, J.

1. On 15.4.2005 and 9.8.2005 there was no appearance on behalf of the Respondent (MCD). In view of this, the matter was proceeded with and arguments were partly heard on 9.8.2005. Today also there is no appearance on behalf of the Respondent. Therefore, the arguments were concluded.

2. The Petitioner impugns an order dated 10.7.2001 passed by the Respondent (hereinafter called as the `MCD’) which has resulted in imposition of penalty upon him, after his retirement.

3. The Petitioner joined as a Fitter in MCD in 1964. Whilst in services he remained absent without sanctioned leave for a period of four years three months, namely, from 1.9.81 to 19.1.86. He reported to his duties and was permitted to rejoin the services of MCD. At that point of time the Petitioner was made to file a detailed affidavit; subject to that condition he was taken into services of the MCD.

4. The Petitioner continued in the services of the MCD for another 12 years. On 31.5.98 which is few months before his retirement he was directed to attend the office of the Executive Engineer; thereafter he was directed to submit a No Dues Certificate on 31.8.98 from the Department to release the service benefits on his retirement in October, 1998. On 25.9.98 he was issued a charge-sheet in respect of the absence, between 1981 and 1986. He resisted the charges. Thereafter, on 31.10.98 he superannuated from the services. His terminal benefits and pension, however, were not finally settled since the enquiry into the charge-sheet was pending.

5. The enquiry resulted in a finding of guilt and eventually led to passing of an order by the MCD. The MCD passed the impugned order dated 10.7.01 imposing a penalty of 25% cut for 5 years from the pension of the Petitioner and treating the period of absence from 1.9.81 to 19.1.86 as break in service. This has been impugned as arbitrary. It is averred and contended by the counsel for the Petitioner that the Respondent should not have initiated the proceedings in the first instance. Counsel relies upon a call back notice dated 10.1.1986 which was a part of the enquiry proceedings to say that the MCD itself accepted the Petitioner’s services unconditionally. The imposition of penalty is impugned on the ground that the departmental proceedings were initiated after undue delay and that the penalties imposed were malafides and arbitrary.

6. The MCD in its counter affidavit has supported its order and stated inter alia that the enquiry was necessitated on account of the Petitioner’s misconduct. It has also relied upon a statement dated 22.2.99 made during the course of the enquiry proceedings by the Petitioner in which he admitted to the charge, stated that he did not want to contest the case and requested for early disposal of the enquiry proceedings.

7. Learned counsel for the Petitioner submits that the Respondents have acted in a high handed and arbitrary manner and imposed an extremely harsh and arbitrary punishment. After having permitted the Petitioner, in January 1986 to rejoin duties and then suing a call notice on 10.1.86 the MCD was not within its rights to initiate the departmental proceedings. Secondly, the MCD acted in an arbitrary manner in issuing the charge-sheet after 12 years right at the fag end of the Petitioner’s career. Eventherwise, the penalty imposed is arbitrary and harsh.

8. The records of this case show that the Petitioner was admittedly permitted to rejoin the duties in spite of absence of his duties for a period of 4 years and 3 months on 19.1.86 after he was directed to affirm and file an affidavit. The MCD had issues call notice earlier on 10.1.86. These facts have not been disputed. The proceedings annexed along with the counter affidavit relied upon by the MCD says that the Memo dated 10.1.86 and a copy of the joining report with affidavit were produced in the course of the enquiry.

9. The conduct of an employee in remaining absent without proper explanation for a substantial period like in the present case for more than 4 years is a serious one. In fact, such a conduct in the normal circumstances invites imposition of a major penalty. The MCD, however, overlooked it and permitted the Petitioner to rejoin the duties. There is no complaint of the Petitioner’s having indulged in a similar conduct thereafter. There is no reason as to what impelled the MCD to dig out an old matter after the Petitioner had worked for 12 long years. Having regard to the nature of the charge, and the admission made by the Petitioner in the year 1999uring the course of the proceedings, I am of the view that the relief claimed for quashing of the impugned order on the ground of delay, cannot be acceded to. However, the adverse impact of this order on the Petitioner cannot be lost sight of. The Respndent MCD has imposed penalty of withholding 25% of pension for 5 years and also deducted the 5 years period from the eligibility for pension.

10. It is a settled law that in judicial review the Court can take cognizance that the penalty imposed on the ground of proven misconduct is disproportionate in certain exceptional cases. The Supreme Court in its judgment reported as B.C. Chaturvedi v. UOI and Others stated that proportionality of an order of penalty can be looked into in proceedings under Article 226. The caveat by the Supreme Court was that the penalty which the Court feels ought to be reviewed, should be of such a nature as to shock its conscience. Even in such an eventuality the Court should not exercise its own discretion but should remit the matter to the decision maker to pass an appropriate order.

11. In view of the above facts, I am of the opinion that the impugned order has the effect of imposing a disproportionate and arbitrary penalty upon the Petitioner in respect of a stale misconduct. Having regard to the peculiar circumstances of the case, the penalty cannot be characterised as reasonable. I, therefore, set aside the impugned order and direct reconsideration of the issue of penalty. The Respondent MCD is directed to consider the entire records, including its call letter dated 10.1.1986,affidavit of Petitioner, and order permitting him to rejoin duties in 1986, while passing a fresh order. The fresh order either imposing a penalty or deciding not to impose any penalty shall be passed within a period of six weeks from today.

12. The petition is allowed to the above extent.

The order shall be communicated to the Respondent MCD.