Roopa R.Joshi v. Union of India and Ors

order was not cancelled, revoked or withdrawn. The subsequent order dated

25.1.2001 merely accorded extraordinary leave in regard to the period of absence, but did not condone the unauthorized absence nor wipe out the punishment already imposed. The said order was only consequential to the imposition of punishment. Its effect was to maintain continuity of service of the respondent, but deny salary for the period of absence and not to count the period of absence as qualifying service for the purposes of pension. Its effect is certainly not to exonerate the respondent from the charge of unauthorised absence nor to wipe out the punishment. If the intention was to revoke the punishment, the order dated 25.1.2001 would have clearly stated so. But it did not.

¶12The assumption by the courts below that when an order is passed according extra-ordinary leave for the period of absence, it will have the effect of effacing or erasing the punishment already imposed, is therefore incorrect and is a serious error of law. When the trial court and the appellate Page 13 court had committed this serious error, the High Court ought to have formulated an appropriate question of law and allowed the second appeal. Instead, it chose to dismiss the second appeal putting its seal of approval on a wrong interpretation of law leading to serious repercussions in regard to discipline and administration. The judgment of the High Court confirming the orders of the courts below, therefore calls for interference." Here, the petitioner never reported back for duty and contested the penalty as if she acted correctly; her leave was never sanctioned; nor was the absence condoned, ex-post facto. Therefore, it cannot be said that the penalty was disproportionate.

¶12For the foregoing reasons, the writ petition is meritless; it is dismissed without any order as to costs. S. RAVINDRA BHAT (JUDGE) VIPIN SANGHI (JUDGE) AUGUST 1, 2014

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI Reserved on: 23.07.2014 Pronounced on : 01.08.2014 + W.P.(C) 1676/2013, C.M. NO. 3163/2013 & 3164/2013 ROOPA. R. JOSHI ..... Petitioner Through : Sh. Rakesh Tiku, Sr. Advocate with Sh. Sandeep Kumar, Advocate. versus UOI AND ORS. ..... Respondents Through : Sh. R.V. Sinha, Sh. R.N. Singh and Sh. A.S. Singh, Advocates, for UOI. Sh. Saket Singh, Advocate, for TRAI. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI MR. JUSTICE S. RAVINDRA BHAT % C.M. NO. 3163/2013 Allowed, subject to all just exceptions. W.P.(C) 1676/2013, C.M. NO. 3164/2013 1. The petitioner, a former member of the Indian Economic Service (IES), is aggrieved by the order of the Central Administrative Tribunal (CAT) dated 04.11.2011 in O.A. 1209/2010. She approached the CAT, feeling aggrieved by the order issued by the Central Government, dismissing her from service on proven misconduct of Page 2 unauthorized absence for 4 years, and travelling abroad without intimating the Central Government, the first respondent. 2. The brief facts of the case are that the petitioner, an IES member, was posted as Adviser in the Telecom Regulatory Authority of India (TRAI), the second respondent. She was granted earned leave for 60 days, with effect from 18.08.2003 to 16.10.2003 on personal grounds, by an office order dated 14.08.2003 with the advice to report to Member-Secretary, Tariff Commission, the third respondent. On expiry of leave, she did not rejoin; instead she sent an application dated 13.10.2003 requesting extension of leave without pay till 15.3.2004. The reason for extension claimed by her was her mother's ill health. Again extension of leave was sought till 15.09.2005 by another application dated 12.09.2004; this time it was stated that the petitioner as well as her mother were unwell. During the course of departmental proceedings, the petitioner could not substantiate the claim of her sickness or the ill health of her mother, nor was any supporting material forthcoming. The first respondent, through letters dated 25.10.2004, 10.01.2005, 03.09.2005 and 09.09.2005, asked the petitioner whether she had sought permission to leave the station, as it had transpired that she went abroad, to Muscat. She was also advised to report for duty within fifteen days and that her failing to furnish explanation and rejoin duty would result in a presumption that she had nothing to say in the matter, and that disciplinary action would be initiated against her for unauthorized absence from duty. She was told that pending receipt of explanation, the leave applied for, by her, had not been sanctioned. In the meanwhile, the petitioner wrote to the Page 3 respondents, informing that she had returned to India; this letter (of 05.02.2005) furnished an address for further correspondence, at Chandigarh. In spite of the letters of the respondent, the petitioner stayed away and did not report to duty. 3. In her original application for leave, the petitioner omitted mentioning her intention to travel abroad; she also failed to furnish any address of the place she was to visit. She later informed that she was in Muscat, Oman, visiting her brother. In the application made for seeking extension of leave on 13.10.2003, she gave her address as Muscat, Oman. 4. The respondents initiated major penalty departmental proceedings, alleging misconduct on two articles of charge which read as under: "Article-I That the said Smt. Roopa R. Joshi while being posted as Adviser in the Telecom Regulatory Authority was granted Earned Leave for the period 18th august, 2003 to 16th October, 2003 and was advised to report to Member Secretary, Tariff Commission on expiry of leave. Smt. Roopa R. Joshi has not reported back for duty since then, despite repeated requests from the Department of Economic Affairs. Smt. Roopa R. Joshi has remained on unauthorized absence from 17th October, 2003 till date. Article-II The leave applied on 29.7.2003 by