ORDER
Meera Chhibber, Member (J)
1. By this OA applicant has challenged Office Order dated 28.2.2007 whereby on completion of one month’s notice period, service of the applicant had been terminated with effect from 1.3.2007 A/N (page 13) and Memorandum dated 9.8.2007 whereby his representation has been rejected (page 15). He has also sought a direction to the respondents to reinstate him immediately with all consequential benefits.
2. It is stated by the applicant that he joined as a daily wage Safai Karamchari on 16.5.1994. He was appointed on temporary post of Safiawala on 4.4.1998. He had completed his probation period on 4.4.2000 and was confirmed. He had been performing his duties to the entire satisfaction of the respondents all along.
3. Unfortunately, he fell sick on 27.8.2006 due to viral fever and could not attend his duties. He duly informed the office and submitted his leave application along with documents also but respondents stopped his pay with effect from 1.9.2006. He received show cause notice dated 20.12.2006 asking him to join his duties within 5 days else he will be relieved from duties. Since applicant was still suffering from illness, he could not join duties. On 7.2.2007 applicant received another notice that his services would be terminated after one month. Applicant became fit on 26.2.2007, therefore, he joined the duties with the request not to terminate his services, but in spite of it, respondents terminated his services under Rule 5 (1) of CCS (Temporary Service) Rules, 1965.
4. Counsel for the applicant submitted period of one month would start from the date notice reached the hands of the applicant or it was tendered to him. Mere despatch of notice does not amount to giving of notice, therefore, applicant could not have been terminated after one month from the date of despatch of notice. His termination is, therefore, bad in law. The order is, therefore, liable to be quashed. Being aggrieved, he submitted his appeal which was rejected by the Administrative Officer, who is lower than the Medical Superintendent of the Hospital who had terminated his service, therefore, the appellate order is also not sustainable in law.
5. Respondents on the other hand have opposed this OA. They have explained that applicant was appointed as Safaiwala on 4.4.1998 but he started remaining absent from the very first month after his joining that too without informing his superiors. They have stated applicant has remained absent unauthorisedly for 1314 days in a span of 9 years from 4.4.1998 to 1.3.2007 which is in addition to 266 days of E.L./H.P.L. etc. Since post of Safaiwala is one of the essential categories, unauthorised absence affects not only the administration but most importantly the patients care in the hospital which caters to the needs of about 7500 patients on daily basis. They have thus stated that applicant’s services had not been at all satisfactory, therefore, due to his unsatisfactory performance during the entire period, his probation could not be completed nor any order of confirmation could be issued. On the contrary, numbers of memorandums were issued to the applicant, each time he remained unauthroisedly absent but he never bothered for the memorandums also.
6. They have explained respondent No. 2 issued following memorandums/warnings to the applicant vide letters dated 17.7.1998, 30.3.1999, 22.4.1999, 1.6.1999, 3.6.1999, 12.7.1999, 27.7.1999, 2.8.1999 2.12.1999, 12.7.2001, 9.9.2003, 16.4.2004, 3.10.2006, 14.10.2006, 10.11.2006, 20.11.2006, 13.12.2006, 20.12.2006 and 29.12.2006, but he did not improve in spite of repeated warnings, therefore, having no other alternative, ultimately notice under Rule 5 (1) of CCS (Temporary Service) Rules was issued to him informing him his services shall stand terminated on expiry of one month period from the date when this notice is served on or as the case may be is tendered to him vide respondents letter dated 2.2.2007. After the period of one month, service of the applicant was terminated vide memo dated 28.2.2007. They have explained that though applicant had given his reply to the show cause notice but since it was totally unsatisfactory, the applicant was communicated the reply vide memo dated 15.3.2007. However, it returned undelivered. Applicant gave another application on 27.7.2007. Reply thereto was duly communicated to the applicant vide letter dated 9.8.2007. They have thus submitted that applicant has rightly been terminated. OA calls for no interference by this Tribunal. The same may accordingly be dismissed.
7. In rejoinder, counsel for applicant pleaded that some compassion may be shown to the applicant and he may be pardoned. He also assured that in future he would not repeat such a thing, therefore, a direction may be given to the respondents to allow him to join the duties by taking a lenient view in the matter.
8. We have heard both the counsel and perused the pleadings as well.
9. It is relevant to note that applicant was appointed as Safaiwala on 4.4.1998 but immediately thereafter he started absenting without taking any leave from the Hospital. Though respondents have specifically stated that applicant was unauthorisedly absent for 1314 days apart from 266 days of EL/HPL availed by him, but it would be better to give the details of said period which for ready reference is as follows:
S.No. Year Without Pay Earned Leave Medical Leave Half Pay Leave 1. 1998 78 18 7 - 2. 1999 203 17 5 10 3. 2000 83 18 - 20 4. 2001 87 16 - 20
10. Perusal of above chart shows that the applicant remained absent virtually the whole year in the year 1999 and for about 78 days in the very first year when he was appointed. Thereafter also he had remained unauthorisedly absent for considerable period, therefore, by no stretch of imagination, can it be said that applicant had performed duties to the entire satisfaction of the respondents during his probation period. On the contrary, from the chart as reproduced above, it is clear that the applicant can easily be called a non performer. It is relevant to note that though applicant was appointed with effect from 4.4.1998 but within 3 months thereafter the first memorandum had to be issued to the applicant on 17.7.1998 (page 66) as applicant was absent from duty without prior permission of the authority w.e.f. 15.6.1998 from 11.30 A.M. onwards. Respondents had immediately taken objection to his such conduct and had asked him to explain his unauthorized absence (page 66). Once again he absented without taking any prior permission with effect from 14.11.1998 onwards (page 67), therefore, the next memorandum came to be issued on 30.3.1999. In the very next month, i.e., 22.4.1999 another memorandum had to be issued to the applicant as he was again unauthorisedly absent from his duty with effect from 7.4.1999 (page 68). His explanation was called and he was informed no salary would be given to him. Once again he was unauthorisedly absent with effect from 9.5.1999, therefore, another memorandum was issued on 1.6.99. The annexures filed with counter-affidavit from page 66 onwards show that No. of memorandums were given to him, which were in Hindi and each time applicant was directed to explain why he was unauthorisedly absent and so many times he was warned that he would not be paid salary for the alleged unauthorized absence. He was even warned that action would be taken against him but it seems these memorandums had no effect on him at all because he continued to absent unauthorisedly without taking any leave from the authorities and without bothering for the warnings given to him from time to time.
11. In the year 2006, memorandum dated 3.10.2006 was issued as authorities were informed that applicant was again unauthorisedly absent w.e.f. 27.8.2006 (page 78). Once again he was called upon to explain his unauthorized absence and it was also stated in the memorandum that action would be taken against him. In spite of this memorandum, neither applicant joined the duties nor he gave any explanation nor submitted any medical certificate. Accordingly, another memorandum was issued on 4.10.2006 informing him that he has been unauthorisedly absent since 27.8.2006 and in spite of memorandum dated 3.10.2006 neither he has joined his duties nor has he given any explanation, therefore, he must explain his conduct within 5 days. If he does not obey the directions, it would be presumed that he has no explanation and strict action would be taken against the applicant and even his services can be terminated (page 79). It is pertinent to mention here that even after this strong memorandum, applicant did not respond nor gave any application nor bothered to send any medical certificates, which shows he was absolutely incorrigible and did not mend his ways in spite of warning that his services would be terminated, yet another memorandum dated 10.11.2006 was issued referring to the earlier memorandums dated 3.10.2006 and 14.10.2006 giving him another opportunity to comply with the directions failing which his services would be terminated (page 80). Applicant did not join duties despite this threat given by memorandum dated 10.4.2006 nor gave any explanation. Thereafter, applicant’s services could have been terminated but another opportunity was given to him vide memorandum dated 20.11.2006 informing him once again repeatedly that his services would be terminated unless he joins and explains about the unauthorized absence (page 81). Even this was not responded to by the applicant, meaning thereby these warnings were falling on deaf ears still another memorandum dated 13.12.2006 was issued repeating the same warning to the applicant followed by memorandums dated 20.12.2006 and 29.12.2006 (pages 83 and 84) but since applicant did not bother and did not respond to any of the memorandums as mentioned above, final notice dated 2.2.2007 was issued under Rule 5 (1) of CCS (Temporary Service) Rules, 1965 informing him that date on which notice is served on him or on completion of one month, his services would be terminated (page 85). This was duly received by the applicant on 2.2.2007 itself as is evident from page 85, therefore, on completion of one month’s notice period, applicant’s services were terminated vide order dated 28.2.07 (page 86).
12. From above, it is clear that all possible efforts were made by the respondents to call upon the applicant to join the duties and to explain his unauthorized absence, but since neither applicant joined the duties nor gave any valid explanation nor bothered about the repeated warnings given to him and continued to remain absent unauthorisedly, respondents had no other option but to terminate his service. In these circumstances any employer would have taken the same action because it was absolutely clear that applicant was not at all interested in his job. Since applicant had received notice on 2.2.2007 itself, there is no merit in the contention that services could not have been terminated on 1.3.2007. In fact though it is correct that formal notice was issued on 2.2.2007 but applicant was being put on notice since 10.11.2006 that his services would be terminated, therefore, applicant cannot be heard of complaining that sufficient notice was not given to him. If applicant has been terminated, he has to blame himself because he alone is responsible for it.
13. It is wrong on the part of applicant to suggest that he stood confirmed after 2 years. He has not been able to place on record any order to show that he was confirmed whereas the law is well settled that confirmation cannot be automatic as it needs a positive action of issuing an order. In the instant case respondents were all the time issuing memorandums and warnings to the applicant and applicant was absent unauthorisedly for most of the time, therefore, naturally applicant could not have been confirmed.
14. In view of applicant’s unsatisfactory performance, we would agree with respondents that applicant could not have been confirmed. Since applicant was not confirmed, respondents have rightly terminated applicant’s services by attracting Rule 5 (1) of CCS (Temporary Service) Rules.
15. Counsel for the applicant next contended that his representation was rejected by Administrative Officer who is lower than the Medical Superintendent, therefore, order dated 9.8.2007 is not sustainable. However, perusal of memorandum dated 9.8.2007 shows that in the memorandum itself, it is clearly mentioned that the same is being issued with the approval of competent authority. It is thus clear that Administrative Officer had only communicated the decision taken by the competent authority to the applicant and he had not decided it as was contended by the counsel for the applicant, therefore, this contention is also without any merit. The same is accordingly rejected.
16. Counsel for the applicant in the last pleaded that a lenient view may be taken in the matter and applicant may be given another chance to improve himself. However, in a case like this, where applicant had taken up the job, only to remain on unauthorised absence, we do not think it calls for any lenient view. Only one conclusion can be drawn from the facts, as narrated above that the applicant has no will to work. Moreover not only he did not bother for the work for which he was appointed but he had no respect for the directions/warnings issued by the authorities from time to time as he did not even bother for the warnings given to him from time to time and did not mend in spite of clear warnings. In these circumstances, no compassion can be shown to such a person nor can the applicant make any grievance, if he has been terminated. It is absolutely clear that sufficient opportunities were given to the applicant but since he showed no improvement and did not feel it necessary to even inform the authorities. It seems he was absenting at his own whims and fancies without bothering for the provisions of law, therefore, now he cannot have any valid grievance.
17. In the instant case applicant has not been able to produce any order showing that his services were confirmed. On the contrary, respondents have specifically stated that due to his indifferent and unsatisfactory work he was not confirmed. The chart shown above supports the contention of the respondents, therefore, we are satisfied that the applicant was not confirmed and his services have rightly been terminated by attracting Rule 5 (1) of CCS (Temporary Service) Rules, 1965.
18. It is pertinent to note that his absence has not only affected the hospital authorities but in general all the patients, who go to Safdarjung Hospital for taking the treatment because he was appointed to clean the hospital. If all the Safaiwalas start behaving like this, one can understand the situation with which the hospital will be faced.
19. From the facts, as narrated above, it seems one section of the hospital was engaged and busy only for keeping a record as to when the applicant has been absent and in issuing memorandums to the applicant from time to time. This clearly amounts to unnecessary wastage of man-power of the administration. We are, therefore, satisfied that there is no justification to keep such an employee in service nor the relief as prayed for, can be granted to him.
20. In view of above, we do not find any merit in the OA. The same is accordingly dismissed. No order as to costs.