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2012 DIGILAW 572 (RAJ)

Uttam Singh v. State of Rajasthan

2012-03-02

GOPAL KRISHAN VYAS

body2012
JUDGMENT 1. - In this writ petition filed by the petitioner, the petitioner is challenging the validity of the impugned order dated 20.10.2004 (Annex.-6) passed by the Superintendent of Police, Sirohi whereby a penalty of withholding three grade increments with cumulative effect was imposed against the petitioner for in consequence of inquiry conducted against the petitioner under Rule 16, Rajasthan Civil Sendees (Classification, Control and Appeal) Rules, 1958 for willful absence from duty for 22 days, and, order dated 10.8.2007 passed in the review petition of the petitioner by respondent No. 2. 2. The main argument of learned counsel for the petitioner is that as per charge-sheet issued to the petitioner under Rule 16 of the C.C.A. Rules, allegation was made that the petitioner who is working on the post of L.D.C. in the office of the Superintendent of Police remained absent from duty with effect from 3.2.2004 to 24.2.2004 for 22 days and since appointment he remained absent for 29 times. Against the said charge-sheet, reply was filed and, thereafter, an inquiry was conducted but without considering the grounds of the petitioner the inquiry' officer submitted the inquiry report against the petitioner on 3.9.2004 and gave finding that charges are proved in the inquiry. 3. The Disciplinary Authority gave notice to the petitioner on 6.9.2004 along with copy of the inquiry report and sought the petitioner's representation against the so called conclusion of the inquiry.Learned counsel for the petitioner submits that while giving reply it is specifically pleaded that allegations have been wrongly treated to be proved by the inquiry officer because before the inquiry officer he has produced the bills of medicines as well as certificate, in which, it was categorically reported that during the period of absence the petitioner was ill. The reply filed by the petitioner is on record as Annex.-5 but the Disciplinary Authority without considering the reply passed the order for inflicting major penalty of withholding three grade increments with cumulative effect. The Superintendent of Police, Sirohi passed order on 20.10.2004 whereby the above penalty was inflicted against which review petition was filed before His Excellency the Governor of Rajasthan but the said review petition was also rejected vide order dated 10.8.2007.5. The Superintendent of Police, Sirohi passed order on 20.10.2004 whereby the above penalty was inflicted against which review petition was filed before His Excellency the Governor of Rajasthan but the said review petition was also rejected vide order dated 10.8.2007.5. Learned counsel for the petitioner is challenging the impugned order on the ground that the same is non-speaking and passed without considering the reply filed by the petitioner and without discussing the evidence connected with the inquiry, therefore, in view of the judgment in the case of S.N. Mukherjee v. Union of India, (1990) 4 SCC 594 , in which, the Supreme Court held that order of penalty must contain reasons and entire evidence is required to be considered by the Disciplinary Authority, the impugned order deserves to be quashed.6. Learned counsel for the petitioner submits that with regard to the allegation for remaining absent for 29 times since appointment, no evidence is produced before the inquiry officer nor any detail is produced in the inquiry. Therefore, in absence of any detail for remaining absent for 29 times the finding cannot be treated to be established by evidence and the same is, therefore, perverse.7. Lastly, it is submitted that as per Rule 86(3), R.S.R. The departmental inquiry can be initiated in the event of remaining absent from duty for more than 30 days; but, here, in this case the allegation against the petitioner is for willful absence of 22 days, for which, he gave reasonable explanation before the inquiry' officer but it was not considered properly, therefore, the punishment awarded which is upheld by the reviewing authority deserves to be quashed and set aside.8. Learned counsel appearing for the respondents, Mr. I.S. Pareek submits that the petitioner was habitual to remain absent from duty, therefore, charge-sheet was given to him under Rule 16 of the C.C.A. Rules for inflicting major penalty with the charge that he remained absent from duty with effect from 3.2.2004 to 24.2.2004 and he remained absent for 29 times since his appointment and all these facts were considered objectively by the inquiry officer along with evidence on record, therefore, the conclusion arrived at by the inquiry' officer, upon which, the penalty is inflicted does not require interference by this Court. The prosecution has proved its case that the petitioner has committed misconduct by remaining will fully absent from duty, therefore, no case is made out for interference in the impugned order.9. After hearing learned counsel for the parties, I have perused the charge levelled against the petitioner, so also, the report of the inquiry officer and penalty order passed against the petitioner.10. As per Rule 86(3), R.S.R., the departmental inquiry can be initiated if an employee remained will fully absent for more than 30 days. Admittedly', in this case, specific allegation is that the petitioner remained absent from duty for 22 days and a vague allegation is made against the petitioner that he remained absent for 29 times in his tenure, for which, there is no evidence on record. Sub-rule (3) of Rule 86 of the Rajasthan Service Rules reads as follows:- "(3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who will fully remains absent from duty for a period exceeding one month and if the charge of willful absence from duty is proved against him, he may be removed from service." 11. Upon perusal of the above rule, it is abundantly clear that no charge-sheet. is required to be issued before completion of 30 days' will ful absence from duty; but, in this case, the charge against the petitioner is that he remained will fully absent from duty for 22 days with effect from 3.2.2004 to 24.2.2004, therefore, Charge No. 2 is not sustainable in law.12. The inquiry officer discredited the grounds taken by the petitioner and documentary' evidence produced by him without assigning any reason. It is admitted position of the case that the petitioner left the office after obtaining 2 cays1 casual leave on 3.2.2004 and he was to join duty on 5.2.2004 and, thereafter, due to unexpected event he joined duty on 25.2.2004. In this view of the matter, charge No. 1 is also not sustainable in the eye of law.13. With regard to charge No. 3, it is very strange that allegation of remaining absent for 29 times after his appointment is levelled against the petitioner but no detail is produced before the inquiry to prove the charge. The Disciplinary Authority completely ignored the said fact. With regard to charge No. 3, it is very strange that allegation of remaining absent for 29 times after his appointment is levelled against the petitioner but no detail is produced before the inquiry to prove the charge. The Disciplinary Authority completely ignored the said fact. Therefore, the order impugned is totally non-speaking order and cannot be allowed to stand.14. Hence, in view of the judgment rendered by the Hon'ble Supreme Court in S.N. Mukherjee's case (supra) I am of the opinion that the orders impugned are not sustainable in the eye of law.15. Accordingly, this writ petition is allowed. Orders impugned dated 20.10.2004 (Annex.-6) and dated 10.8.2007 (Annex.-8) are hereby quashed and set aside with all consequential benefits.Writ petition allowed. *******